The Magnuson-Stevens Fishery Conservation and Management Act: Reauthorization Issues

The Magnuson-Stevens Fishery Conservation and Management Act: Reauthorization Issues

Order Code RL30215
CRS Report for Congress
Received through the CRS Web
The Magnuson-Stevens Fishery Conservation
and Management Act: Reauthorization Issues
Updated February 7, 2005
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division
Daniel A. Waldeck
Presidential Management Intern
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

The Magnuson-Stevens Fishery Conservation
and Management Act: Reauthorization Issues
Summary
Fishery policy, guided by the Magnuson-Stevens Fishery Conservation and
Management Act (MSFCMA), originally focused on mandates to identify fisheries,
encourage underdeveloped fisheries, and establish databases for socioeconomic
variables. Since that time, new issues have emerged, including a recognition of the
need to identify, measure, and respond to overfishing and to incorporate an ecological
perspective in fishery management through increased attention to habitat. The
MSFCMA was last reauthorized and extensively amended in 1996. Although the
authorization of appropriations under the MSFCMA expired at the end of FY1999,
the Act’s requirements continue in force. At issue for Congress are the terms and
conditions of any provisions designed to reauthorize and amend the Act to address
the concerns of various interest groups.
To identify potential reauthorization issues, CRS queried commercial harvesters,
recreational fishermen, fishery managers, fishery scientists, fish processors, fishery
unions, and environmental organizations to identify matters that they would like to
see discussed during a reauthorization debate. Identified issues include (1) whether
to further specify the approaches to address bycatch and bycatch mortality; (2) how
to define, manage, and protect unique habitats; (3) whether to legislate the
designation of marine protected areas; (4) how to assure that necessary data are
collected; (5) how to manage marine ecosystems; (6) how to assure that regional
council decisions are fair and balanced; (7) how to implement and finance fishing
capacity reduction programs; (8) whether to establish national standards for
individual fishing quota management programs; and (9) whether to authorize user
fees and other charges that could be used for conservation, management, and
enforcement. Other prominent issues may include how to define fishing community,
whether to revise the fishery management plan review process, and how best to
manage highly migratory species. Because of the major changes that have occurred
in marine fisheries since the MSFCMA originated in the mid-1970s, some suggest
that the underlying management structure of U.S. fisheries should be reviewed to
reassess whether fisheries should be managed at the regional or national level. In
addition, both the Pew Oceans Commission and the U.S. Commission on Ocean
Policy have recommended major changes in U.S. fishery management policy.
Potential participants in the reauthorization debate anticipate extended
negotiations on some of these issues and on concerns that have arisen as the 1996
MSFCMA amendments in the Sustainable Fisheries Act have been implemented. In
the House, the Committee on Resources has jurisdiction over any MSFCMA
reauthorization legislation. In the Senate, the Committee on Commerce, Science, and
Transportation has jurisdiction on this issue. Oversight field hearings have been held
and MSFCMA reauthorization bills have been introduced. Most of the issues
discussed in this report are not time-sensitive, and early attention to many of these
issues is not anticipated. This report will be updated as this issue evolves.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Constituencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Recreational Fishing Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commercial Fishing Sector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Environmental Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Native Americans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fishery Scientists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fishery Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fish and Seafood Consumers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Magnuson-Stevens Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Sustainable Fisheries Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsequent Enactments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Oceans Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Biological Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Bycatch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Essential Fish Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Marine Protected Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Overfishing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Harmful Non-Native Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Management Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Data Collection and Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Ecosystem vs. Single-Species Management . . . . . . . . . . . . . . . . . . . . 25
Decision-Making by Regional Councils . . . . . . . . . . . . . . . . . . . . . . . 28
Highly Migratory Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Review of Fishery Management Plans . . . . . . . . . . . . . . . . . . . . . . . . . 32
Management Based on Maximum Sustainable Yield . . . . . . . . . . . . . 33
Coordination and Oversight of State-Managed Fisheries . . . . . . . . . . 34
Decentralized Fishery Management . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Co-Management and the Role of Native Americans . . . . . . . . . . . . . . 35
Aquaculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Review of American Fisheries Act Provisions . . . . . . . . . . . . . . . . . . 36
National Research Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Observer Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Experimental Fishing Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Socioeconomic Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Fishing Capacity Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Individual Fishing Quotas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Fees, Cost Recovery, and Economic Rent . . . . . . . . . . . . . . . . . . . . . . 42
Fishery Subsidies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Fishing Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Small Boat Fleets and Family Fishermen . . . . . . . . . . . . . . . . . . . . . . 47
Transfer Pricing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

The Definition of Recreational Fishing . . . . . . . . . . . . . . . . . . . . . . . . 47
The Private Cost of Resource Management . . . . . . . . . . . . . . . . . . . . . 47
Federal Assistance to Fishermen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Fishing Vessel and Crew Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Adequacy of Appropriations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Congressional Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Appendix: Oceans Commissions’ Recommendations . . . . . . . . . . . . . . . . . . . . . 50

The Magnuson-Stevens Fishery
Conservation and Management Act:
Reauthorization Issues
Introduction
The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)
(P.L. 94-265, as amended; 16 U.S.C. §§1801, et seq.) provides authority for federal
fishery management in the waters of the U.S. Exclusive Economic Zone.1 It was
reauthorized and extensively amended in the 1996 Sustainable Fisheries Act (P.L.
104-297). Although the MSFCMA’s authorization for appropriations expired at the
end of FY1999, the Act’s requirements remain in force and funding has continued,
even without reauthorization. At issue for Congress are the terms and conditions of
any provisions designed to reauthorize and amend the Act to address the concerns of
various interest groups. Congress will be asked to review the direction and criteria
provided by the MSFCMA for allocating fish and shellfish harvest among domestic
interests in an era of mounting private and public demands for these resources.
To identify the breadth of issues that might be brought before Congress during
the ongoing reauthorization debate, CRS asked commercial harvesters, recreational
fishermen, fishery managers, fishery scientists, fish processors, fishery unions, and
environmental groups about their concerns and expectations for the debate. This
report discusses the concerns of a broad cross-section of federal marine fishery
management and conservation interests, to facilitate understanding the differing
positions and to outline options for addressing policy concerns.2
Congress has been active in and supportive of fishery conservation and
management issues for many years, responding primarily to concerns of
environmental interests, Native Americans, and commercial and recreational fishing
groups. Congress generally seems to view the MSFCMA as working well, while
possibly needing certain changes to address concerns that have arisen since the 1996
amendments were enacted. In the House, the Committee on Resources has
jurisdiction over MSFCMA reauthorization legislation. In the Senate, the Committee
1 The MSFCMA defines this zone as contiguous to the territorial sea of the United States
and extending seaward 200 nautical miles measured from the baseline from which the
territorial sea is measured. Generally, the federal government, through the National Marine
Fisheries Service/NOAA Fisheries, has jurisdiction in waters from the outer boundary of
state waters out to 200 nautical miles offshore.
2 Respondents were guaranteed anonymity to facilitate a candid discussion of issues.
Presentation of constituent opinion in this report represents a sampling, not a quantitative
assessment.

CRS-2
on Commerce, Science, and Transportation has jurisdiction over legislation on this
issue. Since the enactment of the Sustainable Fisheries Act in 1996, these
committees have held numerous oversight hearings to review MSFCMA
implementation and issues. Reauthorization bills were introduced in the 106th,
107th, and 108th Congresses, and one was reported in the House during the 107th
Congress, but no further action was taken. Action on reauthorization legislation
introduced in the 109th Congress will be discussed in CRS Issue Brief IB10139,
Fishery, Aquaculture, and Marine Mammal Legislation in the 109th Congress, by
Eugene H. Buck.
Constituencies
An array of groups and individuals hold common and conflicting interests in our
nation’s fisheries. Despite their diversity, they generally share the goals of ensuring
sustainable fisheries and maintaining healthy ecosystems. These groups, however,
often disagree about how best to achieve these goals and use our common resources,
and conflicts arise. The following descriptions are general characterizations. There
is enormous variability and crossover of membership among these groups, which
often blurs the distinction among the concerns within each group. For example,
fishery scientists may act as objective independent analysts or serve as advocates for
a specific sector, with the same scientist performing multiple roles on different
issues. As Congress considers reauthorization of the MSFCMA, these diverse groups
will advocate a wide variety of policies.
Recreational Fishing Interests.3 In 2002, more than 10.5 million anglers
fished in marine recreational fisheries, accounting for 73 million fishing trips.4 The
marine finfish catch was estimated to be 421 million fish, of which more than 55%
were reported to have been released alive.5 The estimated weight of the total harvest
was 228 million pounds.6 The overall economic impact of marine recreational
fishing in 1996 was $25.1 billion.7 In 2001, marine angler expenditures totaled $8.4
3 Many marine recreational fisheries occur entirely within state waters. Therefore,
depending on the fishery, federal management under the MSFCMA may not be an issue.
4 U.S. Dept. of Commerce, National Marine Fisheries Service, Fisheries of the United
States, 2002. Current Fishery Statistics No. 2002 (Sept. 2003), p. 26 (hereafter “NMFS
Fishery Statistics”). A different estimate (9.1 million anglers accounting for nearly 72
million fishing trips) is provided by U.S. Dept. of the Interior, Fish and Wildlife Service and
U.S. Dept. of Commerce, Bureau of Census, 2001 National Survey of Fishing, Hunting, and
Wildlife-Associated Recreation (Oct. 2002), p. 6 (hereafter “FWS Fishing Survey”).
5 NMFS Fishery Statistics, p. 26. The National Marine Fisheries Service does not provide
an estimate of mortality after release. Several respondents note that, in some instances,
mortality after release may be quite high.
6 NMFS Fishery Statistics, p. 26.
7 U.S. Dept. of Commerce, National Marine Fisheries Service, Accomplishment Report
under the Recreational Fishery Resources Conservation Plan (1997). See [http://www.
nmfs.noaa.gov/irf/recaccmp97.html], visited Aug. 11, 2004.

CRS-3
billion.8 Components of the recreational sector include extractive (e.g., individual
fishermen) and non-extractive users (e.g., divers who do not spear, gather, or
otherwise harvest marine life) as well as charter and other commercial operations
catering to sport anglers.
A principal objective of this group is to receive equal consideration (relative to
the commercial fishing sector) in decisions affecting access to and participation in
U.S. fisheries. They are concerned that the substantial economic benefits to the
nation of recreational fishing are not adequately recognized. Moreover, for fish
conservation and habitat protection, recreational interests would like federal
managers to distinguish between the impacts of recreational fishing and those of
commercial fish harvesting. The balance between commercial and recreational
interests varies widely among issues, species, and regions, with many regulations that
restrict the activities of commercial fishermen, such as closed areas and quota
restrictions, having little parallel for the recreational sector.
Commercial Fishing Sector. In 2001, there were more than 64,000
commercial fishing boats and vessels operating in U.S. marine fisheries,9 and 3,410
processing and wholesale plants, employing 71,533 individuals.10 In 2002, the total
catch of marine fish in the 50 states was 9.4 billion pounds, with an estimated ex-
vessel value11 of $3.1 billion.12 For 2002, the overall economic contribution of
commercial fishing to gross national product (in value added) was estimated to be
$28.4 billion.13
This sector is chiefly concerned with ensuring sustainable fisheries that balance
environmental protection with the continued viability and sustainability of their
industry and communities. This sector includes a diverse group of interests, each
with specific concerns regarding the rational use of living marine resources and the
equitable allocation of resources among user groups. These sectors divide according
to scale of operation; type of activity (fishermen, catcher-processor, processor); type
of fishing gear used (trawl, longline, gillnet, pots, seine); and location (inshore or
offshore), with most of these subdivisions represented by an association that seeks
to communicate constituent values and influence policy.
Environmental Groups. More than 50 national and many more regional and
local U.S. environmental organizations focus primarily or largely on marine fishery
8 FWS Fishing Survey, p. 8.
9 NMFS Fishery Statistics, p. 94. This number is a significant underestimate since estimates
are not available for nine coastal states.
10 NMFS Fishery Statistics, p. 95. This number represents individuals employed by
processors and wholesale plants, an indeterminate portion of which are employed on floating
processors at sea. It does not include catching, transporting, or retail marketing of
commercially-caught fish, nor does it include jobs supported by commercial fisheries.
11 Ex-vessel value is the money paid to the harvester for fish, shellfish, and other aquatic
plants and animals (i.e., the dollar value of the harvest when it is off-loaded from the vessel).
12 NMFS Fishery Statistics, p. iv.
13 NMFS Fishery Statistics, p. v.

CRS-4
issues or some aspect thereof. Membership in these groups ranges into the millions,
including many recreational and commercial fishermen. Relative to the MSFCMA,
environmental groups are principally concerned with overfishing of certain fish
stocks, the lack of assessment data for many managed stocks, the direct and indirect
harm to other marine species (including marine mammals, sea turtles, and sea birds),
the failure of current methods to report bycatch14 accurately, the protection of marine
biodiversity, and the continuing loss of habitat. They frequently maintain that there
has been a nationwide failure to protect habitat from fishing and non-fishing harm.
Native Americans. Because of their cultural, traditional, and subsistence15
needs, many tribes and indigenous groups are deeply concerned about the
management of marine fisheries. Some tribes and indigenous groups are guaranteed
access to certain fishery resources by treaty, with the federal government obliged to
protect and maintain these rights.16 Some tribes and groups are represented by
Fishery Commissions that coordinate fishery management with federal agencies. The
long-term goals of tribes and indigenous groups generally include safeguarding
cultural traditions, promoting economic stability, encouraging resource sustainability,
and attaining regulatory certainty. Of particular concern during MSFCMA
reauthorization will be cooperative management of marine fisheries (i.e., partnership
with the federal government in establishing policy and determining management
goals), which they believe fosters economic vitality, environmental health, and
rational management of natural resources.
Fishery Scientists. Scientists from academia, the private sector, and state
and federal agencies are principally involved in analyzing the ecological/biological,
social, cultural, and economic effects of MSFCMA provisions and fishery
management policy. Like the other groups, they are concerned with the health and
integrity of marine ecosystems, the rational use of marine resources, and community
sustainability. Specifically, they are interested in the availability of adequate funding
and accurate data to perform the necessary analyses. Many fishery scientists, at some
point in their careers, may be employed as fishery managers, since sound
management is promoted by scientific understanding of the resource.
Fishery Managers. Federal and state fishery managers are charged with
implementing the MSFCMA and complementary state programs. Because of this
responsibility, their interests and concerns are more keenly focused on the pragmatic
aspects of the MSFCMA. Specifically, they are interested in clarity in the intent of
management requirements and in authorizations and requirements for data collection
and research.
14 Bycatch is the incidental catch of non-targeted fish species, which are typically discarded
(often dead) because they are either illegal to retain or of an undesirable species, size, or sex.
15 Critics contend that subsistence is a non-issue, because no groups or communities in the
United States are starving or are likely to starve as a result of fishery harvest restrictions.
Others, however, point out that a subsistence lifestyle refers to traditional and customary use
and encompasses more than nutritional concerns.
16 For an example of how Native American treaty fishing rights have been interpreted by the
courts, see the summary provided by the Center for Columbia River History at [http://
www.ccrh.org/comm/river/legal/boldt.htm], visited on July 16, 2004.

CRS-5
Fish and Seafood Consumers. Individuals and families seek to maintain
access to a wide range of fish and seafood products in the marketplace in response
to perceptions that these products are tasty, nutritious, and healthy sources of protein.
The stability, sustainability, safety, and diversity of supply, including international
trade relationships, are important issues for these consumers.
The Magnuson-Stevens Act
Background
On September 28, 1945, President Truman issued a proclamation aimed at
implementing conservation measures outside and adjacent to American territorial
waters.17 The 1945 Truman Proclamation, claiming U.S. jurisdiction over U.S.
continental shelf resources adjacent to the U.S. coast, has been viewed as the advent
of coastal nations extending territorial seas and declaring fishery and economic
zones.18 President Truman did not declare an “exclusive economic zone” nor claim
rights to exclusive fishing, but his unilateral proclamations (on the seabed, its subsoil,
and certain “conservation zones”) served as the conceptual underpinnings of
subsequent extensions.19
In the late 1940s and early 1950s, several Latin American nations proclaimed
marine jurisdictions extending 200 miles off their Pacific coasts. This action was
denounced by those within the United States20 and other distant-water fishing nations
who sought to preserve and expand access for far-ranging fishing vessels.
Beginning in the 1950s (Atlantic) and 1960s (Pacific), increasing numbers of
foreign fishing vessels steamed into waters offshore of the United States to catch the
substantially unexploited living marine resources.21 Since the United States then
claimed only a 3-mile jurisdiction (a 12-mile U.S. contiguous fishery zone was
proclaimed in 1966), foreign vessels could fish many of the same stocks caught by
U.S. fishermen. U.S. fishermen deplored this “foreign encroachment” and alleged
that overfishing was causing stress on, or outright depletion of, fish stocks. Complex
and inconclusive Law of the Sea Treaty negotiations in the 1970s provided impetus
for unilateral U.S. action on ocean management jurisdiction.
17 Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources
of the Subsoil and Sea Bed of the Continental Shelf, 3 C.F.R. §67 (1943-1948).
18 CRS Issue Brief IB95010, The Law of the Sea Convention and U.S. Policy: Issue Brief,
by Marjorie A. Browne.
19 Jamison E. Colburn. “Turbot Wars: Straddling Stocks, Regime Theory, and a New U.N.
Agreement,” Florida State University Journal of Transnational Law & Policy, vol. 6, no.
2 (1997), note 73.
20 Particularly commercial fishing interests seeking tuna.
21 For example, the increase of foreign fishing off Alaska is discussed in Eugene H. Buck,
National Patterns and Trends of Fishery Development in the North Pacific (Anchorage, AK:
Arctic Environmental Information and Data Center, Univ. of Alaska, 1973), 65 pp.

CRS-6
The enactment of the Fishery Conservation and Management Act (FCMA) in
1976 (renamed in 198022 to honor the late Senator Warren G. Magnuson, and in
199623 to include Senator Ted Stevens) ushered in a new era of federal marine fishery
management. After several years of debate, the FCMA was signed into law on April
13, 1976, as P.L. 94-265. Under the FCMA, on March 1, 1977, marine fishery
resources beyond state jurisdiction but within 200 miles of all U.S. coasts came under
federal jurisdiction. A new regional management system began allocating fishing
privileges, with priority given to domestic enterprise. Primary federal management
authority was vested in the National Marine Fisheries Service (NMFS, sometimes
popularly referred to as “NOAA Fisheries”) within the National Oceanic and
Atmospheric Administration (NOAA) of the Department of Commerce. The
FCMA’s 200-mile fishery conservation zone was superseded by an Exclusive
Economic Zone (EEZ) proclaimed by President Reagan on March 10, 1983.24
The FCMA created eight regional fishery management councils and their
associated advisory committees. Based on provisions in the FCMA and guidelines
provided by NMFS, the regional councils prepare fishery management plans (FMPs)
for those fisheries that they determine require active federal management.25 After
public hearings, revised FMPs and draft implementing regulations are submitted to
the Secretary of Commerce for approval. Approved plans are implemented through
regulations published in the Federal Register. Together these regional councils have
implemented 40 FMPs for various fish and shellfish resources, with 9 additional
plans in various stages of development.26 Some plans are created for single species
or for several closely related species (e.g., FMPs for red drum by the South Atlantic
Regional Council and for shrimp by the Gulf of Mexico Regional Council). Others
are developed for multi-species assemblages inhabiting a similar habitat (e.g., FMPs
for Gulf of Alaska groundfish by the North Pacific Regional Council and for reef fish
by the Gulf of Mexico Regional Council). Many of the implemented plans have
undergone subsequent amendment (one more than 30 times), and three plans have
been developed and implemented jointly by two regional councils.
Initially, a substantial portion of fishery resources in federal offshore waters was
allocated for foreign fishing. However, foreign allocations diminished as domestic
fishing and processing industries expanded. Under the FCMA, foreign catch from
the U.S. EEZ declined from about 3.8 billion pounds in 1977 to zero since 1992.
Triggering this decline of foreign catch, domestic offshore catch increased
dramatically, from about 1.6 billion pounds (1977) to more than 5.9 billion pounds
22 P.L. 96-561 §238.
23 P.L. 104-208 §208.
24 Proclamation No. 5030, Exclusive Economic Zone of the United States of America, 3
C.F.R. Comp. (1983), p. 22. Although this proclamation implemented one of the Law of the
Sea (LOS) provisions, the United States has not yet ratified the LOS Convention.
25 Pursuant to the 1996 revisions of the MSFCMA, FMPs for Atlantic highly migratory
species are prepared by the Secretary of Commerce (NMFS) with consultation by the
relevant regional councils, advisors to international agreements, and advisory panels. See
MSFCMA, §304(g).
26 See [http://www.nmfs.noaa.gov/sfa/domes_fish/FMPS.htm], visited July 16, 2004.

CRS-7
(2002). Thus, the share of fish caught by foreign nations from the U.S. EEZ declined
from 71% in 1977 to zero in 1992; foreign fishing has not been permitted in the U.S.
EEZ since 1992. For combined inshore and offshore domestic harvest in 2002, the
marine recreational finfish catch was 0.2 billion pounds, while the commercial sector
landed 9.4 billion pounds of finfish and shellfish.
The Sustainable Fisheries Act
In 1996, Congress approved and President Clinton signed the Sustainable
Fisheries Act (SFA; P.L. 104-297),27 amending the MSFCMA with new requirements
to (1) conserve fish stocks and restore overfished populations, (2) assure that
membership on regional councils is fair and balanced, (3) impose a moratorium on
creating new individual fishing quota programs, (4) increase emphasis on social
benefits that might better preserve traditional small-scale fishermen, and (5)
strengthen provisions to minimize bycatch and restore and protect habitat.
The SFA established requirements that each FMP include a definition of
overfishing, a plan for rebuilding overfished stocks (including stopping overfishing
within two years and developing a plan to rebuild overfished fisheries within 10
years), conservation and management measures to minimize bycatch, and a
description of essential fish habitat (EFH) for the species involved (including
conservation and management measures to protect habitat).
Bycatch is the incidental catch of non-targeted fish species. These species are
typically discarded (often dead) either because they are illegal to retain or because
they are of an undesirable species, size, or sex. Such discards trigger concerns about
environmental harm and economic waste. The SFA mandated that FMPs include
standardized reporting to assess the amount and type of bycatch in managed fisheries.
The SFA also mandates conservation measures to minimize bycatch and the mortality
of unavoidable bycatch to the extent practicable.
Based on concerns that certain fish stocks had declined due to habitat loss,28 the
SFA established a national program to facilitate long-term protection of EFH.29 The
SFA requires regional councils to identify and describe EFH for each managed
fishery; identify and assess the harm and potential harm caused by fishing and
non-fishing activities; minimize as much as possible the harm caused by fishing,
which may include gear restrictions or time/area closures; identify harm to habitat of
proposed fishing and non-fishing activities requiring federal or state approval or
permits; and assist NMFS in recommending measures to conserve, enhance, and
restore EFH.
27 For a summary of the evolution and passage of this law, see archived CRS Issue Brief
IB95036, Magnuson Fishery Conservation and Management Act Reauthorization, by
Eugene H. Buck.
28 See MSFCMA §2(a)(2)(C); 16 U.S.C. §1801(2)(a)(2)(C).
29 See MSFCMA §305(b); 16 U.S.C. §1855(b).

CRS-8
NMFS and the eight regional councils were responsible for implementing the
provisions and requirements mandated in the SFA. Regional councils were given
two years (until October 11, 1998) to revise or write FMPs to meet all the new
requirements. To comply with SFA requirements, NMFS drafted a strategy detailing
the necessary implementation tasks.30 Through this process, NMFS and the regional
councils have addressed most of the SFA requirements. The NMFS Implementation
Activity List indicates what has been accomplished.31
Implementation. The provisions and requirements of the SFA reflect
significant changes to the goals and objectives of the MSFCMA, and full
implementation of these provisions has been of great concern to many groups.
Accordingly, there has been considerable interest in the actions of regional councils
and NMFS in implementing the SFA.
Of particular concern to environmental groups and some Members of Congress
is the progress of NMFS and regional councils in implementing SFA requirements.
In their review of proposed FMP amendments, some of the more critical interests
suggest that regional councils have instituted only incremental changes to current
management practices. These critics contend that regional councils have satisfied
only the minimum requirements and, in some cases, failed to comply with the law,
rather than fully embracing the new goals and objectives. Moreover, they suggest
that NMFS precipitated the poor performance of regional councils by delaying
implementation guidance and by allowing substantial latitude in how regional
councils implement the SFA provisions.
Some commercial fishermen contend that the standards established by NMFS
guidelines are unrealistic, given the dearth of scientific information. They contend
that this has resulted in assumption-based and model-based goals that are at odds
with implementing meaningful protection. Moreover, some commercial fishing
interests contend that, given the magnitude of tasks set before regional councils and
NMFS, the timetables established by the SFA were unrealistic and hence delays were
inevitable.
NMFS has not formally commented on the criticisms. They indicate that their
efforts have focused on accomplishing the myriad tasks set forth in the SFA and
implementing the law, rather than on addressing the concerns of citizens who
disagreed with their strategy or progress.
Subsequent Enactments
The MSFCMA has been amended and modified a number of times to address
specific concerns since the last comprehensive reauthorization in 1996. On October
23, 1998, President Clinton signed into law modified language from S. 1221 (the
American Fisheries Act, or AFA) as part of the Omnibus Consolidated and
30 U.S. Dept. of Commerce, National Marine Fisheries Service, Sustainable Fisheries Act
Implementation Plan (1996). Many NMFS SFA implementation documents are available
at [http://www.nmfs.noaa.gov/sfa/], visited Aug. 11, 2004.
31 Available at [http://www.nmfs.noaa.gov/sfa/activity/index.html], visited Aug. 11, 2004.

CRS-9
Emergency Supplemental Appropriations for Fiscal Year 1999 (Title II of P.L. 105-
277, 112 Stat. 2681-616). These provisions (1) require owners of all U.S.-flag
fishing vessels to retain at least a 75% U.S.-controlling interest; (2) identify eligible
participants for the Bering Sea and Aleutian Islands walleye pollock fishery;
(3) include a vessel buy-back program for nine catcher/processor vessels financed by
federal and private sector funds; (4) establish pollock allocations for three separate
industry sectors; and (5) establish protocols for fishermen’s and fish processor’s
cooperatives in the Bering Sea and Aleutian Islands walleye pollock fishery. The
AFA prohibits any new fishing vessel exceeding 165 feet in length, or 750 tons, or
with engines that produce greater than 3,000 horsepower from entering any
MSFCMA managed fishery, unless the Secretary of Commerce and the relevant
regional council approve the use of the vessel.32
In the 106th Congress, P.L. 106-31 included language in §3025 making
permanent a one-year moratorium (included in P.L. 105-277) on operating large
fishing vessels in the North Atlantic herring and mackerel fisheries until regional
action is taken. In addition, Title VI of P.L. 106-450 authorized the Secretary of
Commerce to acquire and equip fishery survey vessels, and P.L. 106-557 prohibited
shark finning in U.S. waters.
In the 107th Congress, §10107 of P.L. 107-171 (the Farm Security and Rural
Investment Act of 2002) appropriated “such sums as are necessary” to support a
voluntary fishing capacity reduction program for the New England multispecies
commercial fishery, within one year of enactment. P.L. 107-206 included
(1) language to make Fisheries Finance Program Account funds available to
subsidize gross obligations for the principal amount of direct loans not to exceed $5
million for individual fishing quota loans, and not to exceed $19 million for
traditional loans; (2) $11 million in economic assistance to New England fishermen
and fishing communities (§210); (3) $5 million of direct economic assistance to New
England fishermen and communities to support port security (§211); and (4) a $0.5
million loan guarantee for a $50 million capacity reduction program for the West
Coast groundfish fishery (§212). Section 624(a) of P.L. 107-77 extended state
authority to manage the West Coast Dungeness crab fishery through FY2006. In
addition, several enactments amended the AFA to address specific concerns:
! Section 2202 of P.L. 107-20 altered provisions relating to the
applicability of U.S. ownership standards to banks holding
commercial fishing vessel mortgages;
! Section 211 of P.L. 107-77 deleted a sunset provision, effectively
making permanent a prohibition on direct pollock fishing by non-
AFA catcher/processors; and
! Section 205 of P.L. 107-117 made the entire $100 million for the
AFA’s fishing capacity reduction program available as a loan under
Title XI of the Merchant Marine Act, 1936.
32 Except for vessels fishing in the U.S. EEZ under the authority of the Western Pacific
Regional Council or purse seine vessels engaged in tuna fishing in the Pacific Ocean outside
of the U.S. EEZ; see §202(a)(5) of P.L. 105-277.

CRS-10
In the 108th Congress, P.L. 108-7 included provisions creating a West Coast
Groundfish Fishing Capacity Reduction Program, directing NOAA Fisheries to
establish a Regional Office for the Pacific Area, and providing $100 million in
fishery disaster funding. Section 801 (Division B) of P.L. 108-199 directed the
Secretary of Commerce to approve the Bering Sea and Aleutian Islands crab
rationalization program, including individual processor quota; §802 established a
Gulf of Alaska rockfish demonstration program; and §803 reopened an Aleutian
Islands pollock fishery. Also included in P.L. 108-199, §105 (Division H) prohibited
the spending of FY2004 funds to implement new regulations to reduce overfishing
and rebuild fish stocks off New England. Section §304 of P.L. 108-219 repealed the
P.L. 108-199 prohibition on FY2004 New England fisheries expenditures; in
addition, §401 of P.L. 108-219 amended the MSFCMA to recognize the Pacific
Albacore Treaty with Canada. Section 224 of P.L. 108-293 required the Coast Guard
and NOAA to (1) improve consultations with each other and with state and local
authorities in coordinating fishery law enforcement and (2) submit annual summary
reports on fisheries law enforcement. P.L. 108-447 authorized capacity reduction
funding for the Southeast Alaska purse seine salmon fishery ($50 million; §209,
Division B), the Gulf of Mexico reef fish longline fishery ($35 million; §218,
Division B), the Bering Sea Aleutian Island non-pollock groundfish fishery ($75
million; §219(b), Division B), the U.S. distant water tuna fleet ($40 million; Fisheries
Finance Program Account, Division B), and the menhaden fishery ($19 million;
Fisheries Finance Program Account, Division B).
Action taken by the 109th Congress is discussed and summarized in CRS Issue
Brief IB10139, Fishery, Aquaculture, and Marine Mammal Legislation in the 109th
Congress, by Eugene H. Buck.
Oceans Commissions
Two ocean commissions recently released reports relating to marine fisheries.
The Pew Oceans Commission report33 was released June 4, 2003, and the U.S.
Commission on Ocean Policy’s final report34 was issued on September 20, 2004.
Fishery issues are only one aspect of the comprehensive ocean policy issues
discussed in these reports; the larger context includes governance, education, coastal
development, human health, environmental quality, energy resources, and ocean
science, among others. For background on the reports and the larger context of these
issues, see CRS Issue Brief IB10132, Ocean Commissions: Ocean Policy Review and
Outlook. A table in the Appendix to this report compares the reports’
recommendations relating to marine fisheries. As is normally the case, CRS takes
no position with respect to either report’s recommendations.
33 The Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea
Change, available at [http://www.pewoceans.org/oceans/index.asp] on Apr. 27, 2004.
34 U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century, available at
[http://www.oceancommission.gov/documents/prepub_report/pre_pub_fin_report.pdf] on
Feb. 24, 2005.

CRS-11
Issues for Congress
The remainder of this report discusses issues that may be considered during any
reauthorization debate on the MSFCMA. However, few fishery issues are national
in scope, and regional concerns vary greatly; what may be a major concern in one
region may be inconsequential or entirely different in character in another.35 Thus,
many of these issues are likely to be debated in a regional, rather than national,
context. Some of the more controversial issues that may be addressed during
reauthorization include (1) whether to further specify the approaches to address
bycatch and bycatch mortality; (2) how to define, manage, and protect unique
habitats; (3) whether to legislate the designation of marine protected areas; (4) how
to assure that necessary data are collected; (5) how to manage marine ecosystems; (6)
how to assure that regional council decisions are fair and balanced; (7) how to
implement and finance fishing capacity reduction programs; (8) whether to establish
national standards for individual fishing quota management programs; and (9)
whether to authorize user fees and other charges that could be used for conservation,
management, and enforcement. Many of these issues were addressed in 1996.
Additional issues have been prompted by the recommendations from the Pew Oceans
Commission and the U.S. Commission on Ocean Policy (see “Oceans Commissions,”
above.)
Another matter of likely debate is the current management structure of regional
councils and agency regulation and how they affect fisheries management. The issue
before Congress is whether fisheries management could be improved through
increased legislative control over regional council decision-making or by providing
regional councils greater autonomy over their management activities. Those in favor
of increased legislative control argue that it could quiet criticisms that fishery
managers misinterpret the intent of Congress and decrease perceived conflict of
interest in regional council decision-making. Conversely, local communities would
likely be concerned that national management would lose sight of local issues.
Others contend that increased congressional involvement in managing fisheries could
lead to increased politicization and further increase the time it takes to respond to
problems and concerns.
Other prominent issues may include whether and how to increase fishery
management data collection efforts, how to define fishing community, whether to
revise the FMP review process, how best to manage highly migratory species, and
whether to increase emphasis on preserving ecosystem health and long-term resource
productivity. These issues have arisen repeatedly, and the MSFCMA often has been
amended in attempts to address them.
To increase the usefulness and readability of this report, the issues and concerns
that follow are grouped according to similarity in subject matter, although aspects of
35 An example can be seen with the bycatch issue, where concerns for sea turtle survival
(although turtles are not bycatch, as defined in the MSFCMA) and, more recently, finfish
bycatch reduction in shrimp trawls make this issue much more controversial in the Gulf of
Mexico and South Atlantic regions.

CRS-12
many issues transcend this artificial grouping. The order in which this information
is presented does not represent a ranking or hierarchy of importance.
Biological Issues
Various constituencies have voiced concern regarding the need to clarify and/or
modify how the fishery resource is viewed under the MSFCMA. These concerns
range from narrow suggestions for improving aspects to reflect increasing
understanding in fishery science to broad commentary on what actions are necessary
to achieve the overall MSFCMA goal of sustainable resource productivity.
Bycatch. Bycatch is fish harvested in a fishery, but not sold or kept for
personal use, and includes economic discards and regulatory discards.36 Economic
discards are fish that are targeted by the fishery, but are not retained because they are
of an undesirable size, sex, or quality, or for other economic reasons.37 Regulatory
discards are fish harvested in a fishery that fishermen are required by regulation to
discard whenever caught, or to retain but not sell.38 The MSFCMA’s definition of
bycatch explicitly excludes fish released alive under a recreational catch-and-release
fishery management program. Section 2(c)(3) of the MSFCMA encourages
development of measures to minimize bycatch to the extent practicable and avoid the
unnecessary waste of fish. Section 301(9) establishes a national standard that
requires conservation and management measures to minimize bycatch and bycatch
mortality.
Environmental groups assert that many regional councils’ draft FMPs generally
do not meet the SFA requirements related to bycatch.39 They charge that, at best,
regional councils have concentrated their efforts on developing strategies and
procedural measures, rather than taking direct action to minimize bycatch and
bycatch mortality. Environmental interests also contend that many regional councils
(e.g., New England, Mid-Atlantic, Gulf of Mexico, and Caribbean Regional
Councils) neglected to submit FMP amendments that addressed SFA bycatch
requirements.
Some environmental groups contend that most regional councils have failed to
assess the adequacy of current bycatch reporting methods and identify what is
necessary to establish standardized bycatch reporting methods. Specific
recommendations include accurately quantifying bycatch of target species (fish
discarded because they are not marketable) and non-target species (fish caught
incidentally), accounting for catch and bycatch before catch is sorted, and expanding
the use of NMFS observers to measure total catch.
36 16 U.S.C. §1802(2).
37 16 U.S.C. §1802(9).
38 16 U.S.C. §1802(33).
39 The Marine Fish Conservation Network and The Center for Marine Conservation, Missing
the Boat (Washington, DC: 1999), p. 2.

CRS-13
Some fishery managers suggest that the MSFCMA’s definition of bycatch may
need to be reviewed, as it is important to the practical implementation of bycatch
controls in the MSFCMA. These managers assert that, while these definitions may
seem clear, in practice they are quite problematic. Bycatch, in essence, pertains to
fish that are discarded.40 Thus, one direct way for regional councils to reduce
discards would be to require retention and utilization of all catch. However, these
managers and environmental groups suggest that this does not address the incidental
catch of non-targeted species. Moreover, these individuals suggest that the definition
of economic discards is of little practical use, contending that it might better be
described as “any discard that is not a regulatory discard.” They also note that in
many fisheries it is difficult to accurately determine the amount of regulatory
discards. For example, NMFS fishery observers in North Pacific groundfish fisheries
collect data on total catch weights and estimate the percent of catch retained (the
difference being an estimate of the amount discarded). The accuracy and reliability
of these estimates are often questioned. As a means to better estimate total fishing
mortality, the SFA mandated standardized reporting to assess bycatch. Many fishery
managers assert, however, that collecting accurate data may pose a substantial
financial burden and may be infeasible.
As an alternative, these managers suggest that the MSFCMA definition of
bycatch should be amended to include retained and discarded incidental catch of fish
and non-fish species (e.g., sea birds), and that the terms economic and regulatory
discards should be eliminated. Additionally, congressional consideration of how best
to discourage bycatch might also include initiating and monitoring full retention of
catch, with requirements for donating prohibited species to charitable organizations.
Similarly, some commercial fishing interests contend that the concept of
regulatory discards needs to be addressed, to better encourage the commercial sector
to support fishery management strategies. They assert that the principle that “fish are
better discarded dead than brought to market” undermines any possibility of industry
support for management actions. They point to the summer flounder fishery, where
as much as half of the total allowable catch quota has been discarded because of
minimum fish size limits and quota/trip limits.
Despite the legislative and regulatory efforts of Congress, NMFS, and the
regional councils to address bycatch and waste, these issues are still of great concern
to the public, environmental organizations, recreational anglers, and commercial
fishermen. During reauthorization, these groups may suggest that Congress consider:
! creating additional incentives for commercial and recreational
fishermen to avoid bycatch or reduce bycatch mortality of
incidentally caught species (e.g., individual or vessel bycatch
allowances);41
40 Bycatch, by its MSFCMA definition, does not include incidentally caught sea turtles, sea
birds, and other non-fish organisms.
41 Concerns about vessel bycatch allowances (VBAs) include the following: (1) some
fishermen contend that VBAs are both efficient (they provide the proper incentives for
(continued...)

CRS-14
! directing NMFS to implement increasingly stringent regulations that
close fisheries or penalize individuals for high levels of bycatch and
bycatch mortality, and to increase funding for enforcement;
! funding research for innovative fishing gear that reduces bycatch
and/or bycatch mortality;
! creating tax incentives for using bycatch reduction devices;
! allowing nonprofit utilization of fish that would otherwise be
discarded; and
! increasing funding for NMFS to research and develop bycatch
reduction measures.
Some additional options to create incentives for avoiding bycatch might be to:
! increase funding to place more NMFS observers on board vessels to
obtain reliable bycatch data;
! strengthen the definition of bycatch to directly address the problems
of non-selective fishing practices, and correct the misinterpretation
that equates dead discards of non-target fish with voluntary release
of target fish; and
! require that all sources of mortality, including dead discards, be
counted against total allowable catch quotas.
Some fishery scientists suggest that the use of new fishing gear could greatly
reduce bycatch and bycatch mortality. Currently, the use of new gear is regulated by
the List of Fisheries and Gear (50 C.F.R. §600.725(v)) and Notification Guidelines
(50 C.F.R. §600.747(H)).42 The Notification Guidelines establish a process for
notifying regional councils (or NMFS, in the case of Atlantic HMS) of the intent to
use new gear43 and guidelines for approving new gear.44 Some fishery scientists are
concerned that this process is burdensome and discourages the development and use
of new fishing gear. They may suggest that Congress review the process by which
regional councils authorize the use of new fishing gear, and consider ways to
41 (...continued)
reducing bycatch) and equitable (they reward individuals who avoid bycatch or reduce
bycatch mortality); (2) conversely, some environmental groups and other fishermen assert
that VBAs provide no guarantee that bycatch will be reduced below what is currently
allowed because the allocated bycatch effectively becomes a right to continue taking
bycatch; and (3) some scientists point out that individual observer data can be highly
variable, with a potentially disparate effect on fishermen with VBAs who may be saddled
with incompetent, lazy, or dishonest observers.
42 64 Federal Register 4030, Jan. 27, 1999.
43 No person or vessel may use fishing gear or participate in a fishery (commercial and
recreational) not included in the list without giving 90 days advance notice to the
appropriate regional council or the Secretary (64 Federal Register 4031, Jan. 27, 1999).
44 If a regional council finds that the new gear or fishery would not compromise the
effectiveness of conservation and management efforts under the Magnuson-Stevens Act, the
regional council will recommend to the regional administrator that the authorized list of
fisheries be amended (64 Federal Register 4031, Jan. 27, 1999).

CRS-15
encourage the development and use of innovative fishing technologies.45 Specific to
the development of innovative fishing gear, these scientists may suggest that
Congress require regional councils to discuss several additional concerns in FMPs,
including:
! requirements for developing and implementing bycatch reduction
plans;
! specific funding to study gear that reduces bycatch;
! harvest access incentives for fishermen participating in the
development of bycatch reduction devices; and
! technical assistance programs to help design and conduct statistically
valid studies for assessing the effectiveness of bycatch reduction
devices.
Essential Fish Habitat. Section 305(b) of the MSFCMA establishes
requirements for identifying, describing, conserving, and enhancing EFH. Section
303(a)(7) requires FMPs to minimize the harm to EFH caused by fishing. Section
303(a)(8) establishes requirements for scientific data needed to implement FMPs.
Section 3(10) defines EFH. Regulations provide some guidelines as to how EFH is
to be identified in FMPs,46 including provisions for designating habitat areas of
particular concern (HAPC) that may be especially important to the long-term
productivity of populations of one or more managed species.47
Fishery scientists, environmental groups, and commercial and recreational
fishing interests are concerned about how NMFS, the regional councils, and others
have interpreted these EFH provisions. Additionally, the paucity of tangible
scientific data has been widely viewed as a hindrance to identifying, describing, and
conserving EFH. Environmental groups commend the regional councils for their
success in identifying and describing EFH. However, these groups suggest that,
while there have been some strides in addressing the harm caused by fishing and
non-fishing activities, most regional councils have yet to establish measures to reduce
the harmful effects of fishing activities on habitat. Some environmental groups view
this lack of action as a major shortcoming of EFH implementation, and suggest that
congressional action might be required to force regional councils to act.
The MSFCMA defines EFH as “those waters and substrate necessary to fish for
spawning, breeding, feeding or growth to maturity.” There is considerable debate
about how to distinguish between essential and non-essential habitat.48 The aquatic
45 Experimental fisheries are regulated under 50 C.F.R. §679.6, which allows regional
administrators to authorize experimental fisheries for groundfish in a manner that would be
otherwise prohibited. Some note that NMFS’s/NOAA Fisheries’ centralized control of
scientific, experimental, and exempted permits has resulted in long delays in processing
applications. They recommend making permits available on a regional basis.
46 50 C.F.R. §600.815.
47 50 C.F.R. §600.815(a)(8).
48 However, critics of this approach suggest that any distinction between “essential” and
(continued...)

CRS-16
environment has few clearly defined boundaries. Thus, habitat necessary to support
fisheries is not easily recognizable or quantifiable. For example, salmonids use a
wide range of aquatic environments, from open ocean to estuaries to inland rivers and
lakes. It has been argued that each of these areas is essential to salmon during some
point in their life. Therefore, any activity that occurs in this range of habitats could
harm “those waters and substrate necessary to fish,” including fishing, shipping,
farming, timber harvesting, and hydropower production. Others contend that only
portions of these environments may be essential to salmon.
The distinction between essential and non-essential habitat, however, is
problematic. Managing an unbounded natural environment often necessitates
drawing imaginary lines to regulate human activities within that environment. To
protect fish and other marine life from harmful human activities, the MSFCMA
required regional councils to describe and identify EFH. However, the unlimited
ocean environment combined with limited scientific information about fish life
histories and habitat needs can result in somewhat arbitrary definitions of essential.
This ambiguity raises concerns among constituents about how regional councils are
distinguishing EFH.
Some fishery scientists express concern that regional councils have defined EFH
for some species in overly broad terms. For example, the Pacific Regional Council
defines EFH for salmonids to include all waters of the EEZ and all freshwater areas
that contain or have contained salmonids. These scientists are concerned that
regional councils have not distinguished between essential and non-essential parts
of a range of habitat, choosing instead to define all habitat as essential. These
scientists suggest that by perhaps modifying the definition of EFH, Congress could
better direct how regional councils are to make EFH determinations. Some scientists
suggest modifying §305(b) to include a simple statement that fish habitat is divided
into areas that are essential and those that are non-essential; that an explanation be
included in the FMP of the criteria by which these determinations are made; and that
actions that damage EFH be described. Other scientists believe that attempts to
divide habitat into essential and non-essential components would be unworkable
(most notably because of the lack of scientific data) and create further delays in
implementing EFH provisions. They support EFH designations based on available
data and believe that NMFS and regional councils have appropriately used a
precautionary approach in identifying EFH. In their opinion, regional councils did
not define EFH arbitrarily; rather, regional councils used fish distribution as a proxy
for EFH in defining the EFH boundaries. They assert that the controversy lies in
where, within the bounds of EFH, fish distribution should be defined as essential.
Because data are not available to ascertain the exact relationship between fish and
habitat, they believe that most regional councils have correctly used stock distribution
and density data to identify EFH. Moreover, they note that, as more and better data
become available, EFH can be narrowed by revising the EFH provisions in FMPs.
Other suggestions for identifying and describing EFH include the following:
(1) because of its critical importance to fish survival, include all substrate areas that
48 (...continued)
“non-essential” is substantially based on a highly anthropogenic view of animal behavior.

CRS-17
a demersal49 or non-demersal species uses during any part of its life history as EFH,
and, where possible, divide into primary, secondary, and tertiary habitats;
(2) distinguish between EFH and critical habitat, with critical habitats defined as
those areas where significant ecological harm could imperil the species or stock in
question;50 and (3) increase the strength of EFH provisions relating to state waters,
non-fishing activities, and land-use practices that influence EFH.
In addition to addressing the definition of EFH, some commercial fishing
interests recommend that Congress define the context for judging harm. They note
that, in North Pacific Regional Council discussions about EFH, each species may be
viewed as part of the habitat for other species (because of predator-prey relations and
other life history needs). Thus, they contend that plankton is part of the habitat for
herring, herring is part of the habitat for salmon, salmon is part of the habitat for sea
lions, etc., and the harvest of any species might constitute harm to another species.
Moreover, they note that successful predators inevitably modify their environment
to some degree, and fishermen function as predators in the marine environment.
Fishing is not a benign activity — it causes change within the marine environment.
In their opinion, these changes inevitably harm some species and benefit others.
These commercial fishing interests believe that sustainability of the overall system
should be the goal, and that Congress might consider clarifying the definition of
harm, especially in terms of harm to EFH caused by fishing, as referred to at
§307(a)(7).
While not specifically addressed in the MSFCMA, data are critical for
identifying and describing EFH. Whether constituencies perceive the EFH
provisions as beneficial to fishery management or as restricting fishing opportunities,
virtually all believe more research is required to better define the linkages between
habitat and fishery productivity, determine the extent of harm caused by fishing and
non-fishing activities, and assess the need for “protected areas” to protect habitat and
conserve fish stocks.
Various interests commend ongoing efforts to describe and identify EFH, but
note that additional research is needed to understand the habitat requirements of fish
at various life history stages; the role of submerged aquatic vegetation, reefs, and
“cover” in salmon streams, mangrove forests, and wetlands; and the linkages between
habitat, fishery production, and ecosystem health; as well as to map different habitats.
Thus, it is likely that fishery scientists, environmental groups, and commercial and
recreational fishing interests will ask Congress to consider authorizing research
focused on habitat and its role in ensuring sustainable fisheries.
49 Living near, deposited on, or sinking to the bottom of the sea.
50 As noted above, the EFH regulations encourage regional councils to identify Habitat
Areas of Particular Concern (i.e., rare or ecologically important areas of EFH) to focus EFH
protection efforts.

CRS-18
Marine Protected Areas.51 A marine protected area (MPA)52 can be
considered to be any part of the marine environment that is selectively managed to
offer enhanced protection of the plants, animals, and/or cultural features in that
area.53 An MPA could include underwater areas close to the coast or offshore; reefs
and seagrass beds; and shipwrecks and archaeological sites. MPAs could also
include estuarine and intertidal areas, including tidal lagoons, mudflats, saltmarshes,
mangroves, and rock platforms. Different types of U.S. MPAs include national
marine sanctuaries, fishery management zones, national seashores, national parks,
national monuments, critical habitats, national wildlife refuges, national estuarine
research reserves, state conservation areas, state reserves, and many others. The
MSFCMA neither specifically addresses MPAs nor prevents regional councils from
designating MPAs. Under the MSFCMA, MPAs could be used in combination with
traditional fishery management tools as one approach to rebuilding fisheries and
protecting EFH. (See §§304(e) and 305(b), respectively, of the MSFCMA.)
MPAs may enhance fisheries by protecting fish spawning aggregation and
nursery areas, such as seagrass beds, mangrove communities, and reefs. MPAs may
play a role in rebuilding fish stocks by providing a haven for fish to grow and
reproduce. Adult fish may then move from MPAs into adjoining areas, enhancing
fishery production. Proponents of MPAs claim that protected areas may be beneficial
in curbing overfishing, rebuilding depleted stocks, preserving ecosystem integrity,
and protecting EFH. Specifically, they suggest that MPAs can prevent overfishing
by providing a hedge against uncertain stock assessments, rebuilding depleted stocks
by allowing older and more reproductive individuals to survive, alleviating the
impacts of fishing on habitat, providing reference sites to assess fishing and non-
fishing impacts, and providing a refuge for bycatch species.54
Some environmental groups believe that MPAs are a promising management
tool, but one highly subject to political manipulation. These interests assert that, for
51 For more detailed information on this topic, see CRS Report RL32154, Marine Protected
Areas: An Overview, by Jeffrey Zinn and Eugene H. Buck; and National Research Council,
Marine Protected Areas: Tools for Sustaining Ocean Ecosystems, Committee on the
Evaluation, Design, and Monitoring of Marine Reserves and Protected Areas in the United
States, Ocean Studies Board, Commission on Geosciences, Environment, and Resources
(Washington, DC: National Academy Press, 2001), 272 pp.
52 The creation of MPAs was promoted by President Clinton’s signing of Executive Order
13158 (May 26, 2000) on Marine Protected Areas. For the text of this order, see
[http://www.mpa.gov/executive_order/execordermpa.pdf], visited Aug. 11, 2004. This order
also established a National MPA Center to provide federal, state, territorial, tribal, and local
governments with the information, technologies, and strategies to support an MPA system.
For general background on federal MPA activities, see also [http://www.mpa.gov], visited
Aug. 11, 2004.
53 See [http://www.mpa.gov/information_tools/archives/what_is_mpa.html#varying], visited
July 2, 2004.
54 Some fishery scientists note that the scallop closed-area on Georges Bank highlighted the
potential benefits of one approach to MPAs. After fishing was prohibited in this area for
several years, bottom trawl survey data indicated a buildup of yellowtail flounder and large
numbers of scallops.

CRS-19
MPAs to be effective, a significant portion of EFH should be included in a protected
area. They contend, however, that commercial and recreational fishing interests will
use political pressure to restrict MPA classification to suboptimal habitat. To ensure
that MPAs provide real benefits for fish production and habitat protection, some of
the more vocal MPA proponents recommend that exploitation of fish stocks in
protected areas be eliminated or limited to catch-and-release sportfishing.
Other respondents suggest that all seagrass beds, mangrove areas, and reefs
should be considered for listing as MPAs. They believe that “core” areas can be
identified and should be closed to all activities, except carefully monitored scientific
investigation.55 For coral reefs, some respondents contend that one of the most
detrimental activities to fish populations is spear fishing with the aid of scuba gear.
They recommend that this activity be eliminated if heavily fished coral reefs are to
recover.
Some commercial and recreational fishing interests are likely to counter
proponents’ claims by noting the weakness of scientific proof that MPAs accomplish
what their supporters contend. They and other opponents are likely to ask Congress
to consider the economic losses that may result from designating MPAs and closing
areas to fishing and other uses. These groups will likely ask for more scientific
research before closing areas, reducing fishing opportunity, and imposing economic
costs on users. These groups also are concerned about the permanence of MPA
designations and desire the flexibility through adaptive management to change MPA
boundaries and regulations in response to an evolving understanding of MPAs. They
also note that while MPAs may be a useful tool within a traditional management
system, regional councils should not be mandated to use MPAs.
Moreover, some critics of MPAs contend that, while establishing a reserve to
protect and maintain sessile or largely non-mobile stocks or species may be prudent
in certain circumstances, highly mobile animals do not recognize protected area
boundaries. Thus, they argue that extreme protective measures, such as no-take
zones, may be ineffective for migratory fish.
Finally, some scientists note that although MPAs may initially benefit depleted
stocks by allowing rebuilding, additional research is needed on the management
problems created by overcrowding and increased density of concentrating fishing
vessels in the remaining smaller open areas when fishing grounds are closed for an
extended period of time. They note that scientific studies already suggest that
overcrowded and high-density fishing can lead to health problems and poor
reproduction in marine species. They conclude that periodic and monitored fishing
in closed areas may be appropriate after rebuilding has occurred.
55 Certain areas of the marine environment have been closed to all or specific activities for
a variety of reasons (e.g., marine sanctuaries designated under the Marine Protection,
Research, and Sanctuaries Act (16 U.S.C. §§1431, et seq.); regulatory closures in the Bering
Sea and Aleutian Islands to protect crab, salmon, herring, and marine mammals; the Oculina
Banks Experimental Reserve established by the South Atlantic Regional Council; and the
Tortugas Shrimp Sanctuary).

CRS-20
Other comments include the following: (1) managers should also consider the
broad array of economic benefits and costs, including the potential growth of
non-extractive ecotourism in association with MPAs (e.g., displaced fishermen might
become involved in non-extractive dive trips); (2) closures should affect all sectors
equally (some commercial fishermen assert that current closed areas have resulted
in highly unequal treatment among gear sectors); (3) MPAs and their regulations
should be carefully evaluated for their potential to displace subsistence/traditional
and customary use fishermen; and (4) designations of MPAs should be made by
regional councils, not Congress (i.e., local decisions, not national control).
Discussions about EFH include continuing debate over situations where MPAs
might be an appropriate means to conserve stocks and protect habitat. The level of
protection can vary among different types of MPAs. Some MPAs allow a wide range
of activities (including fishing) while others are more stringently regulated, possibly
prohibiting all human activities. The size of an MPA depends on its intended
purpose. MPAs created to protect shipwrecks can be quite small, while those that
aim to protect whole ecosystems may be much larger.
Issues that Congress may face include whether the MPA concept should be
codified in law, the rationale for creating MPAs and methods for selecting which
areas to protect, the types of activities that would be permitted or prohibited and why,
a review of existing closed areas (including assessing their effectiveness), and
research to determine the sociocultural and economic benefits and costs of creating
MPAs.
The difference between no-take marine reserves (areas closed to all resource
extraction) and multiple-use areas (areas with gear-type or time/area restrictions, but
where limited fishing is permitted) is one of the more controversial issues in the
debate over the merits of designating MPAs. Fishing groups would be likely to ask
for consideration of the differences between recreational and commercial fishing, and
the relative effects of various types of commercial gear and operational
characteristics.
Overfishing. Environmental groups have expressed concern over regulatory
exemptions to the national standard that requires conservation and management
measures to prevent overfishing.56 They suggest that, by allowing overfishing to
continue, NMFS’s/NOAA Fisheries’ interpretation weakens the law and endangers
56 50 C.F.R. §600.310(d)(6). NMFS explains that, because harvesting one species in a
mixed-stock complex at its optimum yield may result in overfishing of another stock in the
complex, regional councils may permit overfishing only if all of the following conditions
are satisfied: (i) it will result in long-term net benefits to the nation; (ii) mitigating measures
have been considered and a similar level of long-term net benefits cannot be achieved by
modifying fleet behavior, gear selection/configuration, or other technical characteristic in
a manner such that no overfishing would occur; and (iii) the resulting rate or level of fishing
mortality will not cause any species or evolutionarily significant unit thereof to require
protection under the ESA. NMFS, however, reports that this exception has never been
applied and, for that reason, has not been successfully challenged in court by environmental
interests (Natural Resources Defense Council v. Evans, 243 F.Supp.2d 1046 (N.D.Cal.,
2003); Natural Resources Defense Council v. Evans, 168 F.Supp.2d 1149 (N.D.Cal., 2001)).

CRS-21
depleted stocks, and that economic returns are being valued over ecological concerns.
Congressional concern has also been expressed over what is perceived as NMFS
permitting regional councils to miss deadlines and delay actions to end overfishing
and rebuild stocks.57 Environmental groups contend that, rather than using 10 years
as an upper limit on stock recovery, regional councils have uniformly adopted 10
years as a standard recovery period. Environmental groups also suggest that fishery
rebuilding plans, in some instances, do not account for overfishing caused by
recreational harvest.58 The Mid-Atlantic Regional Council’s FMP for summer
flounder, for example, contains no additional management measures to address
overfishing in the recreational fishery. NMFS has taken public comments on
proposed regulatory revisions to guidelines on overfishing,59 but no final rule has
been published. In light of the continued struggles with this issue, Congress may
ultimately decide to review the MSFCMA’s requirements for rebuilding and recovery
of overfished stocks.60
Other concerns include (1) continued fishing above the rate that produces
maximum sustainable yield; (2) lack of status assessments for many managed
species; (3) failure of some regional councils to establish criteria to identify when a
stock is overfished; (4) failure of some regional councils to ensure overfished stocks
will be rebuilt within the time frames established by the MSFCMA; (5) delay of
rebuilding plans for stocks needing immediate protection; and (6) lack of overfishing
definitions that are based on the biology of each stock. Additional comments include
(1) the only way to rebuild a stock is to declare a moratorium and wait for the natural
rebuilding cycle to occur, and then resume fishing; and (2) regional councils should
be penalized for failure to meet targets to curb overfishing.
Harmful Non-Native Species. Because of the potential for harm to fishery
resources, some believe that prevention and control of harmful aquatic non-native
species, such as the European green crab (Carcinus maenas), should be given some
consideration during reauthorization of the MSFCMA. For example, potential
invasive species concerns might be identified as a discretionary issue for discussion
in FMPs. For more information on non-native species, see CRS Report RL30123,
57 For example, the Pacific Regional Council proposed a groundfish fishery FMP that would
arguably have perpetuated overfishing the mixed-stock groundfish fishery. Proponents of
this management approach state that criticism oversimplifies a complex management plan,
contending that substantial harvest reductions have been made for two of the three species
designated as overfished. The third (Pacific ocean perch) is a long-lived species, whose
biomass estimate is uncertain, and may take more than 10 years to rebuild. Thus, these
proponents argue that the Pacific Regional Council’s harvest policy complies with the
national standards (16 U.S.C. §1851) under the MSFCMA.
58 Some contend that, in certain South Atlantic and Gulf of Mexico fisheries, sport anglers
far outfish commercial harvesters for those species targeted by sportfishermen. See F. C.
Coleman et. al., “The impact of United States recreational fisheries on marine fish
populations,” Science, Aug. 26, 2004.
59 See [http://www.nmfs.noaa.gov/sfa/domes_fish/NS1/recommendations.version3.pdf],
visited Sept. 1, 2004.
60 16 U.S.C. 1854(e).

CRS-22
Harmful Non-Native Species: Issues for Congress, by M. Lynne Corn, Eugene H.
Buck, Jean Rawson, and Eric Fischer.
Management Issues
Commercial and recreational fishing interests, environmental groups, and
fishery scientists voiced concern regarding the need to clarify and/or modify the
scope and goals of fishery management under the MSFCMA. These concerns range
from narrow suggestions for improving aspects of fishery management to broad
commentary on the overall goals of MSFCMA management.
Data Collection and Management. Section 402 of the MSFCMA provides
authority for regional councils to develop and implement information collection
programs that would be beneficial in developing FMPs or determining if a fishery
needs to be managed.
Recreational and commercial fishing interests express an interest in more data,
including sociocultural data, to improve fishery management. In their view, more
information would promote a better understanding of the economic and sociocultural
contributions of commercial and recreational fishing enterprises as well as the
businesses and industries that support both sectors.61 The absence of adequate data
makes it difficult for fishery managers to arrive at fair and equitable decisions about
matters that affect commercial and recreational fishing.
Some environmental groups believe that the present state of knowledge
regarding catch in recreational fisheries and bycatch in all fisheries is poor and needs
to be greatly improved to prevent overfishing and to minimize bycatch. These groups
assert that many regional councils use the lack of data to justify postponing action in
a number of areas such as identifying maximum sustainable yield (MSY) or optimum
yield (OY); determining the status of many stocks; and proposing measures to
minimize bycatch and the harm caused by fishing gear on EFH. These groups
suggest that additional funding is necessary to support these research efforts so that
the MSFCMA can be properly implemented and fisheries can be sustainably
managed. These groups are specifically concerned with identifying and quantifying
the amount and type of bycatch occurring in all fisheries.
Fishery managers suggest that if more information is going to be collected,
particularly on sociocultural and economic aspects, creative ways will need to be
developed to collect useful information with minimal additional burden. They
believe that programs that collect unverified data from the industry are likely to
impose a high burden but result in low-value information (i.e., data of questionable
validity).62 They assert that the Paperwork Reduction Act (44 U.S.C. §§3501-3520)
61 However, socioeconomic data collection may have a disparate impact upon small entities,
while larger companies can spread such costs over diversified operations. In this respect,
data collection efforts may conflict with the MSFCMA’s National Standard #8 relative to
protecting communities.
62 However, sociocultural and economic scientists are well aware of potential problems with
(continued...)

CRS-23
often hinders efficient collection of information. Moreover, in their opinion, because
the MSFCMA ties data collection to a specific FMP, fragmented and inconsistent
data result. They posit that future versions of the MSFCMA should encourage
interagency and inter-regional cooperation on data collection, satisfying specific FMP
needs within an overarching plan that results in useful information.
Another source of information, suggested by some commercial fishermen, is
fishermen themselves. They believe that fishermen offer a largely untapped source
of data, especially about how many of what species are found when and where. They
contend that these anecdotal data are just as useful as annual or triennial trawl
surveys, and that fishermen should be integrated into data collection and management
efforts.
The types of information collection and analysis that all of these groups may
request include (1) a needs assessment of the types of data required to manage
recreational and commercial fisheries; (2) a needs assessment of the types of
economic and social data (including data on industries that support recreational and
commercial fisheries) needed to make management decisions;63 (3) increased
collection of commercial and recreational fish harvest data (including bycatch); and
(4) increased collection of information to support development, implementation, and
management of individual fishing and bycatch quota programs. Moreover, a variety
of fishing interests are likely to ask Congress for increased attention to collecting
information on the indirect but significant impacts of fishery management policy on
such related businesses as gear manufacturers, local restaurants, ice houses, and other
businesses that support recreational fishing. Contrary to these suggestions, some
commercial and recreational fishermen may object to expanded data collection, citing
their belief that fishing is already heavily regulated and that increased reporting
requirements would add unnecessary costs and other burdens.
The Scientific Basis for Policy. Commercial fishing interests suggest that
weak fishery data hinder decision-making and result in flawed regulations. While
protecting habitat and ecosystems are reasonable objectives, they assert that there is
no way to implement management objectively with inconclusive scientific
information about ecosystems and the impacts of fishing on habitat. They suggest
that Congress modify the MSFCMA to focus on gathering more tangible information
upon which to base regulations. The environmental community would likely use this
same argument to promote even more stringent fishery regulations, noting that the
“precautionary approach” prescribes more conservative management in the face of
uncertainty.64 The crux of the issue is, what is meant by this phrase, and how
“precautionary” management ought to be when dealing with imprecise data and
variable fish stocks.
62 (...continued)
data bias and have developed methods for dealing with these concerns.
63 Others argue that a multitude of these needs assessments have been completed in the last
decade, and the types of information needed are well known; any additional needs
assessments would simply delay needed data collection.
64 Others argue that the time has come to shift the burden of proof to the resource users and
away from fishery managers and scientists.

CRS-24
Some in the environmental community agree that there is a serious lack of
fishery data and that steps should be taken to obtain more and better data. However,
they generally are concerned that this lack of data not be used as an excuse to delay
conservation measures. In their opinion, delays to obtain more data have caused
declines of some managed fish and other marine species to population levels
requiring Endangered Species Act protections. They believe that inaction premised
on lack of information is unsound, contending that the data are sufficient for NMFS
and regional councils to take steps to protect EFH and ecosystems, and concluding
that a precautionary approach makes the use of the best available scientific
information. Others contend that NMFS currently advocates risk-averse decision-
making; nonetheless, they recommend that Congress specifically endorse risk-averse
decision-making, especially where limited data and information are available.
Finally, other scientists note that best available scientific information should
also include sociocultural information. However, in their opinion, there are no
rigorous social and culture impact assessments in current FMPs. They assert a
critical need for sociocultural and socioeconomic data, that must be collected before
social impact analyses can be conducted. Therefore, these scientists might ask
Congress to consider authorizing research programs to collect and analyze
sociocultural information.
Reliability of Management Models. Section 404(c)(1) of the MSFCMA
establishes requirements for the Secretary to initiate and maintain fishery research to
carry out the purposes, policy, and provisions of the Act.
Some fishery managers note a concern regarding the need for additional data to
verify the assumptions used in stock assessment models. Particularly, they assert that
the management analyses garnered from Virtual Population Analysis (VPA) models
could be improved by expanding the use of age-growth65 information. To address
these concerns, some fishery managers suggest that Congress might consider
authorizing funds for expanded age and growth research. For example, regional age
and growth research centers could coordinate information among state and federal
agencies. Fishery managers suggest that a central data clearinghouse would provide
consistent fishery data, avoid duplication of effort, and reduce costs.
Some environmental groups are concerned that fishery managers do not have
the necessary information to determine valid MSY values and the status of many
stocks. They are concerned that assumptions made by regional councils may not be
scientifically justifiable and may, therefore, result in risk-prone management that
increases the likelihood of overfishing. In addition, some fishery scientists note that
it is not just biological or population dynamic models that are problematic, but that
social and economic impact assessment models also have serious deficiencies.
65 Age-growth analysis uses fish scales and otoliths (“ear” bones used for balance and
orientation) to assess age relative to length. These hard structures have annual growth rings,
much like rings in a tree trunk, that can be used to estimate the age of a fish. However, some
fishery scientists note that traditional age-growth research, using hard parts to discern fish
age, is not applicable in tropical regions because fish growth is not subject to discrete
seasonal changes. In tropical regions, “length-based” methods are used.

CRS-25
The National Academy of Sciences’ Committee on Fish Stock Assessment
Methods reviewed existing stock assessment methods and considered alternative
approaches.66 The Committee found that, while simple models are useful, more
complex models are needed to better quantify unknown aspects of the system and to
address the long-term consequences of specific decision rules. Their retrospective
analyses showed that persistent over- or under-estimation can occur over a number
of assessment years, regardless of the assessment model. In their simulations, model
performance became more erratic as more variability or errors were introduced into
the data. They recommended that different assessment models be used to analyze the
same data as a means to identify poor quality data. In addition, the Committee
suggested that greater attention be devoted to including independent estimates of
natural mortality and its variability in assessment models. Specifically, they
recommended (1) using Bayesian methods and other statistical techniques to
incorporate realistic uncertainty into stock assessment models; (2) developing better
assessment models for recreational fisheries and methods to evaluate the impacts of
the quality of recreational data on stock assessments; (3) accounting for effects of
directional changes in environmental variables (e.g., climate change) in new models;
and (4) developing new means to estimate changes in average “catchability,”
selectivity, and mortality over time, rather than assuming that these parameters
remain constant.
Ecosystem vs. Single-Species Management. Fishery scientists suggest
adopting ecosystem-based management, notably for defining EFH. They argue that
habitat use by various species is a composite and involves more than the life cycle
of a single species. These scientists see the need to develop fundamentally new
concepts for dealing with trans-boundary fishery management and EFH issues. In
moving toward ecosystem management, scientists suggest that Congress transform
EFH regulations into national guidelines for instituting ecosystem-based
management.
Currently, the MSFCMA divides the U.S. EEZ into eight regional management
areas. These areas generally extend from 3 miles off the coast out to 200 miles
offshore and are managed by the eight regional councils. Fisheries within 3 miles of
the coast are managed under state authority. Fishery scientists suggest that, because
of the difficulty in subdividing ecosystems for management purposes, Congress
should redefine these management zones. These scientists suggest that unifying
fishery management across state and federal waters is the most important step in
moving toward ecosystem-based management.67 Additionally, they suggest that
artificial boundaries, such as those dividing the Atlantic portion of the nation’s EEZ
into three regional fishery management areas, impair management of trans-boundary
stocks. Redefining regional fishery management areas to reflect an ecosystem-based
66 National Research Council, Committee on Fish Stock Assessment Methods, Improving
Fish Stock Assessments (Washington, DC: National Academy Press, 1998; hereafter “Stock
Assessments”).
67 On the other hand, unifying management may mask a simultaneous need to recognize the
many small ecotones that would benefit from being considered as semi-separate units rather
than simply parts of a great whole.

CRS-26
approach would require major amendment of the MSFCMA. Sections applicable to
such amendment would likely include §303(a) on FMPs and §305(b) on EFH.
A more formal approach for introducing ecosystem considerations into fishery
management is described in the final report of NOAA Fisheries’ Ecosystem
Principles Advisory Panel.68 In 1996, Congress requested an assessment of the extent
to which ecosystem principles are currently applied in fishery research and
management, and recommendations for how best to integrate ecosystem principles
into future fishery management and research.69 The panel noted that:
a comprehensive ecosystem-based fishery management approach would require
managers to consider all interactions that a target fish stock has with predators,
competitors, and prey species; the effects of weather and climate on fishery
biology and ecology; the complex interactions between fishes and their habitat;
and the effects of fishing on fish stocks and their habitat.70
The panel considered full implementation of the overfishing, bycatch, and EFH
provisions of the Sustainable Fisheries Act to be prerequisites to ecosystem-based
fishery management.
In their report, the panel described the enormous task of managing at the
ecosystem level and recognized that, in most cases, then-current data were
insufficient. However, it stressed that there are practical ways to use the information
that is available and recommended the use of fishery ecosystem plans (FEPs) to
further incorporate ecosystem principles into FMPs. The FEP would document the
structure and function of the ecosystem in which fishing activities occur as well as
provide information to managers about the effects of their decisions on other
components of the ecosystem and the effects of other ecosystem components on
fisheries.71 The primary purpose of the FEP would be to allow regional councils to
prescribe how fisheries will be managed from an ecosystem perspective.72
The panel recommended that Congress require NMFS to develop FEP
guidelines and each regional council to develop an FEP for the ecosystem(s) under
its jurisdiction. It stated that each FEP should require, at least, eight actions by
regional councils:
1.
Delineate the geographic extent of the ecosystem, including the biological,
chemical, and physical dynamics, and use a zone-based management
approach to designate geographic areas for prescribed uses;
2.
Develop a conceptual model of the food web;
68 Ecosystem Principles Advisory Panel, Ecosystem-Based Fishery Management: A Report
to Congress, Nov. 1998 (hereafter “Ecosystem Management”). The text of this document
can be viewed at [http://www.nmfs.noaa.gov/sfa/EPAPrpt.pdf], visited Aug. 11, 2004.
69 Mandated by the 1996 SFA amendments to the MSFCMA, §406, fishery systems research.
70 Ecosystem Management, p. 1.
71 Ecosystem Management, p. 3.
72 Ecosystem Management, p. 28.

CRS-27
3.
Describe the habitat needs of different life history stages for all plants and
animals that represent the “significant food web” and how these habitat
needs are considered in conservation and management measures;
4.
Calculate total removals (including incidental mortality) and show how
this relates to standing biomass, production, optimum yields, natural
mortality, and trophic structure;
5.
Assess how uncertainty is characterized and what kind of buffers against
uncertainty are included in conservation and management actions;
6.
Develop indices of ecosystem health as targets for management;
7.
Describe available long-term monitoring data and how they are used; and
8.
Assess the ecological, human, and institutional elements of the ecosystem
which most significantly affect fisheries, both within and outside Regional
Council/Department of Commerce authority. Included should be a strategy
to address those influences to achieve both FMP and FEP objectives.
Panelists suggest that FEPs could also facilitate learning about the ecosystem
and provide for iterative and adaptive management to promote long-term sustainable
harvests. The FEP concept might not be marine ecosystem management; rather, it
could be a way to formally include ecosystem knowledge and document how this
information is used to manage living marine resources. According to panelists, FEPs
could also help achieve the requirements of the Sustainable Fisheries Act to develop
a comprehensive understanding of the limits of a renewable resource, and use that
knowledge to design a socially and economically stable fishery, balancing short-term
minuses with long-term pluses. Recognizing that a great deal of knowledge about
how fisheries function within an ecosystem may be currently underused, FEPs may
offer ways to better use what is known and to incorporate new knowledge.
The panel believed that, while much of what it recommended could be
accomplished under current mandates, directives from Congress would hasten
application of these principles and ensure universal application by the regional
councils. The panel concluded that:
if fishery management is to further incorporate ecosystem principles, Congress
must provide a specific mandate to NMFS and the regional councils to do so and
must fund the scientific infrastructure required to support the decision-making
process. Requiring regional councils to prepare FEPs provides a mechanism to
focus and inform fishery management, to measure progress toward
implementation of ecosystem-based fishery management, to identify research
needs and ultimately to insure healthy and productive ecosystems.73
Some environmental groups believe that ecosystem-based management of fish
stocks, rather than single-species management, is necessary to promote sustainable
fisheries and to protect non-commercial species that may be affected by fishing. As
a means to protect marine ecosystems, these groups might request that Congress
require regional councils to prepare ecosystem management plans and to ensure that
FMPs are consistent with ecosystem plans.
73 Ecosystem Management, p. 37.

CRS-28
Critics of current management contend that single-species management,
especially with different daily allowable catch rates, increases regulatory discards.
They also suggest that the definition of fishery74 could be amended to “one or more
stocks, or inter-related species, of fish which can be treated as a unit.” Some believe
that this modification would facilitate the shift from single-species to ecosystem-
based management.
It should be noted that the National Academy of Sciences concluded that single-
species assessments currently provide the best approach for assessing population
parameters and providing short-term forecasting and management advice.75 The
NAS committee stated that recent interest in bringing ecological and environmental
considerations and multi-species management interactions into stock assessments
should be encouraged, but not at the expense of reducing the quality of stock
assessments.76
Decision-Making by Regional Councils. Section 302 of the MSFCMA
establishes eight regional fishery management councils, and defines requirements for
membership, regional council functions, transaction of business, and disclosure of
financial interest and recusal.
Subsection 302(j) describes the requirements for council members to disclose
financial interest and recuse themselves from decisions in which they have a financial
stake. As in previous reauthorizations of the MSFCMA, perceived conflicts of
interest by regional council members is cause for concern among recreational and
commercial fishermen. Some groups believe that because of the close relationship
with the fishing industry, regional councils are unable to take the necessary steps to
prevent overfishing, rebuild stocks in a timely manner, and properly regulate gear
that catches large amounts of bycatch and damages EFH. At issue is whether
decision-making by individuals with a vested financial interest in a fishery can be
impartial.
In addition to current disclosure and recusal requirements, Congress may be
asked to consider other measures to minimize conflict-of-interest concerns.
Suggestions for preventing financial conflicts-of-interest range from prohibiting
individuals with related financial interests from making fishery management
decisions to requiring regional council members to swear compliance with federal tax
and banking laws. Commercial fishermen suggest that regional council membership
be limited to individuals with practical knowledge of fishing operations, specifically
excluding industry representatives such as executive directors, lawyers, and lobbyists.
74 MSFCMA §3(13)(A) defines the term fishery as one or more stocks of fish which can be
treated as a unit for purposes of conservation and management and which are identified on
the basis of geographical, scientific, technical, recreational, and economic characteristics.
However, several other uses of fishery (e.g., MSFCMA §§303(2), 303(5), and 303(b)(6),
and more indirectly MSFCMA §§3(9) and 305(a)(3)) broaden this definition to include
elements of the fleet such as gear and vessels. These inconsistencies could merit attention
during reauthorization.
75 Stock Assessments.
76 Stock Assessments, p. 4.

CRS-29
However, increasing financial disclosure requirements or limiting the type of
individual allowed to serve on regional councils could make it difficult to obtain
knowledgeable and willing nominees for regional council membership.
Some fishery scientists contend that conflict of interest is not the problem; rather
it is that private and public interests are in conflict. Instead of mandating an
unattainable impartiality, they suggest empowering decision-makers who share the
public interest. That is, decision-makers should bear the consequences of their
decisions in ways consistent with the public interest. This can be achieved, they
suggest, by reconfiguring the incentive structure for decision-makers. In their
opinion, the misalignment of public and private interests is, in large part, due to (1)
shortsightedness on the part of resource users, elected representatives, and agency
heads; and (2) the decoupled costs and benefits of fishery policies and programs.
They contend that shortsightedness on the part of resource users can only be
overcome by giving them more secure claims to future outcomes in fisheries (i.e.,
some form of property rights). The effects of shortsightedness by politicians and
agency heads, they contend, can be overcome by insulating fishery decision-making
from political influence. Finally, they suggest that the benefits and costs of fishery
policy can be more closely coupled by the use of cost-recovery mechanisms, such as
fees and taxes.
Some also support a review of MSFCMA provisions relating to regional council
membership to ensure that all parties interested in U.S. fisheries are adequately
represented. Specifically, environmental groups expressed concern that their
interests are inadequately represented on most regional councils, and suggest that
Congress should consider legislative changes to the MSFCMA to ensure that regional
councils are more broadly representative of the public interest in making fishery
management decisions that benefit the nation. Others suggest that there is a need for
greater representation of non-fishing interests, such as seafood consumers and
environmentalists, as well as increased oversight by independent scientists. The
Bureau of Land Management’s Resource Advisory Councils may provide an
alternative model for balancing various constituencies and their influence.77
Closely related to the issue of financial conflict of interest is the issue raised by
some commercial fishermen who questioned whether regional council members, who
work only part-time on regional council matters, are able to make impartial and
knowledgeable decisions affecting management of the nation’s marine fisheries.
They contend that regional council members who work in the fishing industry are
likely to make decisions that favor the interests of their employers. To prevent this
bias, they suggest making regional council membership a full-time position, with
members solely dedicated to managing fisheries.
Conversely, other fishermen argue that regional councils already have full-time
administrative and professional staff to assist and support council members, and that
council membership should not be a full-time position. They assert that individuals
actively employed in the fishing industry tend to be the most knowledgeable.
77 For background on Resource Advisory Councils, see [http://www.blm.gov/rac/], visited
on Aug. 26, 2004.

CRS-30
Concern was also expressed regarding who the pool of potential regional council
members might include if membership became a full-time profession. It was
suggested that successful fishermen and businessmen would not be as interested in
becoming regional council members were it a full-time job. Another concern is that
the judgment of full-time regional council members could become clouded if they
were constantly worried about keeping their position on the regional council.
Furthermore, some social scientists suggest that there is greater likelihood of
compliance if user groups participate in the regulatory process. They suggest that
making regional council membership a full-time position would preclude user groups
from participating on the regional council. Moreover, regional council membership
is currently limited to a term of three years. This term-limit, some suggest, provides
sufficient means for different perspectives and experience to be involved in the
fishery management process.
The MSFCMA provides for NMFS to have a voting seat on each regional
council, with the NOAA General Counsel participating in regional council business.
However, the MSFCMA lacks provisions for independent legal advice or counsel for
regional councils. Some commercial and recreational fishermen express concern that
the NOAA General Counsel, who represents the interests of NMFS, often dictates
fishery policy in its legal advice to regional councils on measures under
consideration. They contend that the public interest would be better served by
independent legal advice, and suggest that Congress amend the MSFCMA to
authorize independent legal counsel for regional councils.
Others doubt that authorizing independent legal counsel would lead to better
decision-making. They assert that this could unnecessarily delay decision-making
and increase the involvement of the courts in fishery management. They also
contend that it could be costly to change the process, and that the NOAA General
Counsel provides objective legal interpretations. Some also noted that regional
councils are not currently prohibited from hiring lawyers to work on the regional
council staff, providing legal advice as necessary.
Additional comments concerning regional council decision-making include the
following: (1) the role of state governors in the regional council appointment process
should be reduced, and at-large nominations should be solicited through an
application process directly to the Secretary of Commerce; (2) many user groups feel
that they are under-represented on regional councils and that their expertise is under-
used; (3) fishermen should act as paid consultants to the regional councils, providing
advice, but not voting; and (4) regional councils are not adequately funded for their
workload, and need more staff.
Highly Migratory Species. Section 304(g)(1) of the MSFCMA authorizes
the Secretary of Commerce to prepare or amend FMPs for Atlantic highly migratory
species.78
Currently, NMFS is responsible for implementing MSFCMA provisions that
apply to highly migratory species (HMS). Management actions seek to “ensure
78 Highly migratory species include tuna, marlin, oceanic sharks, sailfishes, and swordfish.

CRS-31
conservation and promote the achievement of optimum yield of such species
throughout their range, both within and beyond the exclusive economic zone.”79
FMPs for Atlantic HMS are developed by NMFS in consultation with advisory
panels created by NMFS and composed of constituents from the recreational,
commercial, environmental, and scientific communities.
Some recreational fishermen and environmental groups are concerned about the
effectiveness of the current management system. They observe that Secretarial
management has allowed continued declines in Atlantic HMS. This concern stems
from the perception that NMFS lacks the funding and staff to properly manage
Atlantic HMS, and that current management favors commercial fishing. These
groups may suggest that Congress review the effectiveness of NMFS management
of HMS. Others in the recreational fishing community may suggest returning
management of all HMS fisheries, especially billfish, tuna, and swordfish, to regional
council jurisdiction. Some fishery managers note that, if Congress decides to return
HMS management to the regional councils, more efficient and effective guidelines
for developing joint regional council FMPs might be needed.
Others suggest that Congress authorize a regional council-like process for
managing HMS. They assert that NMFS routinely ignores the advice of its advisory
panels and non-NMFS scientists. They also contend that giving authority back to the
regional councils would be problematic as well, given how poorly the regional
councils have worked together in the past.
Some recreational fishermen and environmental groups express the need for
special management zones along the entire Atlantic and Gulf of Mexico coast, where
longline gear would be prohibited for a specific distance from shore. This is
necessary, in their opinion, because longline fisheries have depleted Atlantic HMS.
Moreover, they stress that the dimensions of the management zone should be set by
fishery scientists, not fishery managers. Commercial fishermen would likely oppose
such management zones, stressing that gear/area prohibitions could cause them
economic harm; they believe that HMS fishery declines are the result of foreign
fishing and environmental factors.
Recreational and commercial fishing interests note that an issue at NMFS HMS
Advisory Panel meetings, and one that continuously seems to frustrate U.S. efforts
to rebuild HMS stocks, was the lack of a clear relationship between the MSFCMA
and existing international treaties (e.g., International Convention for the Conservation
of Atlantic Tuna, the United Nations Convention of the Law of the Sea).
Specifically, these groups question the practicality of domestic efforts to rebuild
North Atlantic swordfish stocks in 10 years or less when the U.S. fisheries account
for only 22% of fishing mortality.
They suggest that it would be beneficial to study international fishing treaties
and their relationship, precedence, and impact on and with the MSFCMA, the
National Standards, and the precautionary approach. Moreover, they contend that a
definitive domestic fishery policy is needed to decide on actions to be taken in the
79 MSFCMA §102.

CRS-32
period between recognizing that an international fishery is overfished and
implementing international management to rebuild those stocks.
Review of Fishery Management Plans. Section 304(a) of the MSFCMA
establishes the process whereby the Secretary of Commerce and NMFS review and
approve FMPs.
Some fishery managers and commercial fishermen express concern about the
accuracy and efficiency of the FMP approval process. They contend that frequent
and lengthy delays in approving and implementing FMPs have damaged both the
industry and fish stocks, and reflect poorly on the performance of NMFS. These
groups may ask Congress to give regional councils final authority on FMP approval
to streamline the process. Others counter that improving the review process is an
administrative concern, and thus legislative action is not needed. Additionally, others
suggest that it may be unconstitutional for regional councils, which are
nongovernmental agencies, to have final decision-making authority about how best
to use and manage the public’s marine fishery resources.
Some federal fishery managers note that some of the delays in the approval
process are the result of the regional council’s failure to produce FMPs that satisfy
all of the legal requirements. Specifically, they note that the time between regional
council action and final rule publication can be attributed to (1) assuring compliance
with other applicable laws; (2) inadequately prepared supporting documentation from
regional council staff, primarily related to compliance with other applicable laws; and
(3) insufficient legal review staff in NOAA General Counsel. Another problem, in
their view, is NOAA Fisheries’ review of FMPs and amendments separate from their
review of the regulations that will implement these FMPs and amendments.
As possible solutions, these managers suggest (1) requiring regional councils
to take final action votes only on fully completed analyses (including the preferred
alternative) and draft proposed rule notices; (2) closer linking of NOAA Fisheries’
review of FMP and plan amendments with the review of implementing regulations;
and (3) providing more funding for NOAA’s Office of the General Counsel.
Some environmentalists contend that a strong NMFS review of FMPs is crucial
to statutory compliance and to balancing regional interests with national priorities.
They suggest that NMFS be authorized to modify an FMP to bring it into compliance
with the MSFCMA if a regional council has not acted within a reasonable period of
time to revise their FMP. They assert that providing regional councils multiple
opportunities to comply with the MSFCMA delays implementation, and note that
currently the Act imposes no deadline for regional council revisions of FMPs that
were partially approved or rejected, furthering delays.
Some suggest that FMPs should be exempt from many of the requirements of
the National Environmental Policy Act (42 U.S.C. §§4321-4347), the Regulatory
Flexibility Act (P.L. 96-354), and the Paperwork Reduction Act (44 U.S.C. §§3501-
3520), which they believe delay the review process unnecessarily. Others, however,
question such exemptions, expressing concern that the rights of fishermen might not
be assured in such situations.

CRS-33
Management Based on Maximum Sustainable Yield. Currently, the
MSFCMA requires FMPs to achieve the optimum yield (OY) from each fishery.
Optimum yield is defined as MSY as “reduced” by economic, social, and ecological
factors.80 Some fishery scientists suggest that Congress modify this definition. They
argue that the concept of MSY is ineffectual for management and decision-making,
because MSY is a long-term average yield, while the politics of fishery management
tend to focus on much shorter-term results.
As an alternative to MSY, some fishery scientists suggest that the MSFCMA
incorporate the concept of an “ecosystem sustainable yield” (ESY). These scientists
suggest that an ecosystem-based yield is preferable to attempting to simultaneously
manage several species at their MSYs. At a minimum, Congress might acknowledge
or recognize the multi-species tradeoffs in interacting food webs within marine and
aquatic ecosystems.
Some in the commercial fishing industry suggest that Congress should return
the term optimum yield to its pre-1996 definition.81 This group believes that the
current definition that “reduces” rather than “modifies” MSY hinders management,
especially when contending with variations in stock size caused by environmental
conditions. They state that, while MSY is difficult if not impossible to estimate,
industry groups likely would support the use of long-term averages.
Conversely, some environmental groups and fishery scientists support the 1996
definition of OY, believing that linking OY to MSY ideally prevents overfishing.
They assert that the prior definition allowed regional councils to set OY above MSY
for short-term economic reasons, at the risk of overfishing. In their opinion, this
approach led to “boom-and-bust” cycles and pulse fishing in many fisheries.
Additionally, many environmental groups believe that linking OY to MSY would
facilitate ecosystem-based management. However, they contend that many regional
councils have not implemented the statutory requirements to reduce OY based on
economic, social, and environmental factors (e.g., predator-prey relationships or the
role of fish in the ecosystem). In their opinion, regional councils have set OY with
little justification except for maximizing catch. This group may request that
Congress require regional councils to consider ecosystem relationships in
establishing optimum yield.
Other fishery scientists and managers suggest that neither MSY nor ESY are
practical concepts for optimum yield. They suggest that OY be defined in terms of
the optimum level of fish removal that takes into account the long-term reproductive
capacity of the stock, species composition of the catch, ecosystem concerns, catch
capacity of the fleet, operational characteristics of the fishery, economic concerns,
and how the fishery is managed.
80 MSFCMA §3(28).
81 The term optimum, with respect to yield from a fishery, means the amount of fish (A)
which will provide the greatest overall benefit to the nation, with particular reference to food
production and recreational opportunities; and (B) which is prescribed as such on the basis
of the maximum sustainable yield from such fishery, as modified by any relevant economic,
social, or ecological factor. MSFCMA §3(21) (Aug. 1994).

CRS-34
Coordination and Oversight of State-Managed Fisheries. Section 306
of the MSFCMA states that the Act neither extends nor diminishes the authority or
jurisdiction of any state within its boundaries. Prior to 1976, states had management
authority over all fisheries in waters adjacent to their states, and there was little or no
federal jurisdiction over living marine resources in these waters. With enactment of
the MSFCMA, marine fishery resources within the U.S. EEZ came under federal
jurisdiction, while states retained jurisdiction of marine fishery resources from their
coastline out to the U.S. EEZ, generally three nautical miles offshore. The
MSFCMA attempts to balance state authority with federal conservation and
management goals, principally through coordination activities and the advice of the
Secretary and NMFS rather than direct oversight of state fishery management.
Fishery managers suggest strengthening the relationship between federal and
state fishery management. They assert that greater federal oversight is needed to
improve decision-making by interstate fishery commissions. Currently, the practice
of managing interstate fisheries is based on equivalency provisions, wherein states
choose management measures they prefer, as long as the measures comply with
federal conservation requirements. Fisheries in which management is coordinated
by interstate commissions are often very diverse, and management approaches vary
from state to state. Commissioners from one state often know little about another
state’s fisheries. Fishery managers suggest that this hinders a state’s ability to make
informed decisions about its conservation plans. The result, they allege, is continued
overfishing and delays in stock rebuilding. Some interests suggest that Congress
authorize an independent entity either to oversee or to directly manage interstate
fisheries. One suggestion for strengthening coordination with states is to delegate
FMP management authority to states, specifically, deleting the last sentence in
§306(a)(3)(B), which states:
For a fishery for which there was a fishery management plan in place on August
1, 1996, that did not delegate management of the fishery to a State as of that date,
the authority provided by this subparagraph applies only if the Council approves
the delegation of management of the fishery to the State by a three-quarters
majority vote of the voting members of the Council.
Decentralized Fishery Management. Some commercial fishing interests
would oppose more centralized management at the federal level. They perceive the
need for increasingly decentralized management at the local level (consistent with
federal objectives), because they believe local individuals are more knowledgeable
about specific environmental and economic conditions. In this view, fishing
communities are readily able to adapt management to prevailing conditions and often
are best suited to manage local fisheries. These interests may suggest that Congress
amend the MSFCMA’s management authority to emphasize local management and
decision-making.82 Such a dramatic change from the current management structure
82 Additionally, some note that the jurisdiction over the 200-mile EEZ of some of the Pacific
Island insular areas is disputed between federal and local governments. In some instances,
federal jurisdiction spans the entire 200 miles, in contrast to other U.S. regions, where the
first 3 miles of coastal water is generally under state jurisdiction. They contend that
decentralization is the favored option in these disputed areas.

CRS-35
likely would require major amendment to the MSFCMA, and additional funding at
the state and local levels.
Some environmental organizations and other commercial and recreational
fishing interests, while recognizing the need for local expertise, would oppose further
decentralization of “the nation’s fisheries.” Generally, these groups oppose an
increased emphasis on decentralized management, especially if it decreases the
ability of those interested in fishery management, but unable to attend regional
council meetings, to participate in the decision-making process. They are also
concerned that management of fisheries could become a local issue, controlled and
managed to maximize benefits to local interests, rather than benefits to the nation.
Decentralized management, in their opinion, might put short-term local economic
needs above long-term sustainability and productivity.
Co-Management and the Role of Native Americans. Previous
reauthorizations of the MSFCMA added significant language to encourage
exploration of the role of indigenous peoples in fishery management.
Fishery scientists suggest that a greater emphasis be placed on incorporating
traditional ecological knowledge into fishery management. These scientists suggest
that Congress consider ways to incorporate the wisdom of indigenous cultures into
contemporary management protocols. Examples of this approach include the
Community Development Programs, which benefit Native Alaskans and Hawaiians
and create a role for them in their respective regional councils. These interests
suggest that Congress add language to the MSFCMA to ensure the longevity and
success of these ventures.
In considering co-management of marine fisheries, Congress could look to co-
management provisions in the Marine Mammal Protection Act (16 U.S.C. §1361) as
a model. These provisions authorize the Secretaries of Commerce and the Interior
to enter into cooperative agreements with Alaska Native organizations to conserve
marine mammals and co-manage Native subsistence use. Through these cooperative
agreements, Native organizations may receive grants to facilitate data collection and
analysis, monitor subsistence harvests, participate in research projects, and develop
co-management arrangements with federal and state agencies.
Aquaculture. Some in the commercial fishing industry assert that public
demand for fishery products is driving the exploitation of marine resources,
contending that sustainability is not just a local or coastal problem, but rather that
national, long-term solutions are needed. They suggest encouraging the development
of a variety of methods to provide the required quantities of fishery products to meet
U.S. demands, especially aquaculture and hatcheries. For example, they point to the
production of salmon in Maine and oysters in Long Island Sound, contending that
their production is almost equal in value to that of the offshore groundfish, scallop,
and lobster fisheries. Moreover, they assert that aquaculture operations require a very
small fraction of the area devoted to “wild” fisheries.
Another aspect is the development of offshore aquaculture, with concerns that
the MSFCMA may need to be amended to provide an appropriate framework for
regional council consideration of these emerging fishery businesses in the EEZ. For

CRS-36
more background on this issue, see CRS Report RS21914, Open Ocean Aquaculture,
by Rachel Borgatti and Eugene H. Buck.
Review of American Fisheries Act Provisions. Some commercial
fishermen may seek a review of the provisions of the American Fisheries Act aimed
at protecting fishermen who do not belong to a cooperative from having their access
to harvestable fish preempted by those who do. They suggest that Congress might
consider instructing regional councils to modify, expand, or limit the role of
cooperatives depending upon the results of this review.
National Research Agenda. Some suggest that a “national research
agenda” is needed to effectively coordinate and fund fishery research. They suggest
that Congress consider authorizing a “Research Council” specifically focused on
marine resource issues. Others suggest that the recent work of the Pew Oceans
Commission and the U.S. Commission on Ocean Policy (see “Oceans Commissions”
previously) may be adequate to stimulate more attention to these concerns.
Observer Status. Although not an MSFCMA issue, this concern is relevant
to MSFCMA activities. The uncertain status of fishery observers under the Jones
Act83 is reportedly causing insurance concerns for both observer contractors and
fishing vessels, making it necessary for both parties to carry exorbitant insurance
coverage. One approach may be to recognize observers such that they are covered
by Workmen’s Compensation.
Experimental Fishing Permits. The MSFCMA currently does not allow
research to develop or improve fishing gear, even when conducted by state or federal
scientists, to be considered as scientific research, thus requiring that scientists
complete a lengthy process to receive an experimental fishing permit. If the
MSFCMA were amended to remove this exclusion, a simple Letter of
Acknowledgment might be adequate to authorize gear research.
Socioeconomic Issues
Commercial and recreational fishing interests, environmental groups, and
fishery scientists voiced concern regarding the need to clarify and/or modify how
socioeconomic decisions affecting the fishing industry are made. These concerns
range from narrow suggestions for improving how the fishing industry operates to
broad commentary on the degree that socioeconomic factors should affect and direct
MSFCMA policy.
Fishing Capacity Reduction.84 Section 312(b)-(e) of the MSFCMA
describes the use of fishing capacity reduction programs as a means to prevent
83 This is the popular name for §27 of the Merchant Marine Act of 1920 (46 U.S.C. 883; 19
C.F.R. 4.80 and 4.80b).
84 Excess fishing capacity decreases economic efficiency and often leads to overfishing
and/or fishing derbies. Reductions in fleet capacity would help to reduce overfishing and
greatly improve the ability to deal with uncertainty and unexpected events in fisheries.
National Academy of Sciences, Sustaining Marine Fisheries (Washington, 1999), p. 119.

CRS-37
overfishing, rebuild stocks, or improve conservation and management. The objective
of capacity reduction programs, as stated in §312(b)(2), is “to obtain the maximum
sustained reduction in fishing capacity at the least cost and in a minimum period of
time.”
How best to reduce fishing capacity, especially using a vessel buy-back
program,85 is likely to be an issue during reauthorization. Some recreational and
commercial fishermen as well as environmental groups want only buy-back programs
that effectively and completely remove a vessel from all U.S. fisheries.86 Without
this, these groups fear that individuals or groups of individuals could be compensated
for exiting one overcapitalized fishery and then entering another fishery in which
entry is not limited. This movement from one fishery to another displaces current
participants and could result in other overcapitalized fisheries. Other fishermen favor
the buy-back of only fishing permits, allowing vessel owners to continue using
vessels they own for other (non-buy-back) fisheries.
NMFS has been criticized for delays in developing guidelines for fishing
capacity reduction programs. The proposed rule for fishing capacity reduction
programs was published February 11, 1999 (64 Federal Register 6854), but has not
been finalized; a U.S. National Plan of Action for the Management of Fishing
Capacity was released in August 2004.87 Critics suggest that these delays have
resulted in the implementation of inconsistent fishing vessel and license buy-back
programs, and that NMFS has a duty to provide an overall framework to guide
capacity reduction programs. In contrast, other respondents note that (1) there is no
statutory mandate requiring NMFS to produce capacity reduction guidelines, and that
priority is given to producing statutorily mandated guidelines; (2) no buy-back
programs have been implemented under MSFCMA §312, and therefore, delays could
not have resulted in inconsistent implementation; and (3) the MSFCMA does not
require national consistency and provides for a variety of mechanisms to fund
capacity reduction programs. Additionally, some fishery scientists and
environmental groups state that efforts should be made to reduce effort in fisheries
before they reach overfished status. They suggest proactive reductions in capacity,
aimed at preventing further declines, rather than waiting to react to stock collapse.
Additional considerations for vessel buy-back programs include:
85 Vessel buy-back is one means to reduce capacity in fisheries. Harvesters are paid to
surrender their fishing permits and/or withdraw their vessels from fishing. See archived
CRS Report 97-441 ENR, Commercial Fishing: Economic Aid and Capacity Reduction, by
Andrew G. Read and Eugene H. Buck, available from the author.
86 Environmental groups argue that, to effectively reduce fishing capacity, “bought-out”
vessels should also be prevented from entering fisheries outside the United States. In their
opinion, exporting domestic capacity leads to global fisheries depletion, which ultimately
affects U.S. interests beyond the U.S. border.
87 See [http://www.nmfs.noaa.gov/sfa/reg_svcs/npoa.capacity.8.4.04.pdf], visited Aug. 25,
2004.

CRS-38
! benefits may be minimal if only marginal operations (i.e., least-
efficient operators or fishermen who fish only occasionally) are
bought out, but the buyout cost would likely be lower;
! individuals who hold fishing permits but do not currently use them
(latent effort) may enter a fishery as others exit, offsetting reductions
in capacity;
! social and economic costs to the community as well as other
requirements under the Regulatory Flexibility Act (P.L. 96-354) may
outweigh the benefits to the resource;
! compensation for boat owners may financially harm the captain or
crew, who lose a source of income;
! appropriate educational and vocational programs for the newly
unemployed or bought-out maritime personnel may not be readily
available;88
! broader unemployment and other economic implications for the
community (e.g., marine businesses that may suffer substantial
income loss as the number of fishing vessels and processing plants
declines) may become evident; and
! buy-back programs may be criticized as ineffective if they are
inefficient at reducing fishing capacity.
NMFS notes that capacity reduction costs could be paid by harvesters who
remain in a post-reduction fishery, or by taxpayers or others. In essence, three
funding options could come before Congress for capacity reduction programs: (1)
government funding (taxpayers), (2) industry funding, or (3) joint government-
industry funding.
Some in the fishing industry strongly believe that, because government subsidy
programs in the late 1970s and 1980s encouraged vessel construction (which lead to
the overcapitalized fishery), the government should subsidize the buy-back.89 That
is, fishermen should not have to pay to remove capacity (effort) that the government
was partly responsible for creating. Fishermen are divided as to whether buy-back
programs should be industry- or government-funded. Fishermen who support an
industry-funded program argue that more control would then have to be given to the
industry regarding the procedures for a vessel-reduction program. Fishermen who
support a government-funded program argue that it “adds insult to injury” to make
fishermen pay for programs designed to “put them out of business.”
Other respondents posit that, because harvesters reap benefits from improving
the fishery and contributed to the depletion of some stocks, harvesters should bear
the brunt of the cost for reducing fishing capacity. These observers contend that
many of the vessels used to exploit U.S. marine resources were subsidized through
the Capital Construction Fund. As such, the government should not be expected to
88 Fishermen’s reasons for choosing fishing, including being on the water, independence,
income potential, and other factors should be considered in proposing possible alternatives.
89 Some believe that this argument is counterintuitive, contending that the commercial
fishing industry lobbied in favor of the subsidy programs, and that these subsidies were not
foisted on an unwitting industry.

CRS-39
pay for vessels a second time by paying owners not to fish.90 They assert that,
because buy-back programs chiefly benefit those who remain in the fishery after
capacity is reduced,91 post-reduction harvesters should fund the buy-back.
Recreational fishing interests suggest that, in considering the capacity reduction
issue, the law should distinguish between commercial and recreational fishing. They
contend that recreational fishing is distinctly different from commercial fishing in
that recreational fishing is tied to the experience of fishing rather than catching fish.92
Reducing fishing mortality and bycatch in recreational fisheries might be better
achieved through public education and outreach initiatives, such as catch-and-release
programs, use of hooks that ease release of fish and increase survivability (e.g.,
barbless, wide-gap, circle), and other ways of reducing harm and stress to fish (e.g.,
hook extractors and handling techniques that minimize harm by avoiding removal of
the protective mucous layer and scales and by eliminating pressure on internal
organs). Other respondents believe that owners of recreational fishing vessels (e.g.,
charter boats) are under enormous pressure to provide their customers with successful
experiences and that recreational fishing does have a significant impact on
sustainability in some fisheries. They contend that reductions in recreational
capacity, funded by the recreational industry, also should be considered, at least in
fisheries where recreational harvest is significant.
Individual Fishing Quotas. Individual fishing quotas are management tools
that grant fishermen the privilege of catching a certain percentage of the total
allowable catch. Section 303(d) of the MSFCMA established a moratorium, until
October 1, 2000, on creating new individual fishing quota programs. Section 108(f)
of the SFA, directed the National Academy of Sciences (NAS) to report on a national
policy for individual fishing quota programs. The moratorium was extended an
additional two years, to October 1, 2002, by P.L. 106-554 (114 Stat. 2763A - 238)
after which it was allowed to expire with no further legislation enacted to establish
national standards to guide new IFQ programs.93
90 Some argue that fishermen are largely responsible for overcapitalization, contending that,
while NMFS did administer the Capital Construction program, the decisions to build or
modify vessels were business decisions of the owners. These critics argue that blaming the
government for overcapitalization is nonsense, particularly for overcapitalization in the New
England fleet. New England’s groundfish fishery was declared a “conditional fishery” in
the early 1980s, and vessels participating in this fishery were no longer eligible for the
Fisheries Obligation Guarantee program authorized by Title XI of the Merchant Marine Act
of 1936 (archived CRS Report 95-460 ENR, Summaries of Major Laws Implemented by the
National Marine Fisheries Service, by Eugene H. Buck; available from the author). They
also contend that fewer than 3% of New England’s groundfish vessels benefitted from this
loan program.
91 For example, harvesters in a post-reduction fishery will benefit from (1) increased catch,
both as a percent of the total allowable catch and a larger total catch for their vessel, and (2)
the likely increased value of their permit or license.
92 However, subsistence/traditional and customary use fishermen are also currently reported
under the “recreational” category, for whom catch may be as or more important than the
“experience of fishing.”
93 National standards were proposed in, for example, S. 1106 and H.R. 2621 in the 108th
(continued...)

CRS-40
The NAS report94 recommended that the moratorium on individual fishing quota
(IFQ) programs be lifted and suggested that Congress consider:
! allowing fees for initial quota allocations, first sale of IFQs, and
leasing of initial shares, as well as an annual tax on quota shares;
! recognizing differences among regions and allowing regional
councils flexibility in designing new (and adjusting existing) IFQ
programs;
! requiring regional councils to define excessive share and to limit
accumulating quota shares; and
! ensuring that funding is available to NMFS and the states for
collecting relevant socioeconomic data.95
In detailing its recommendations to Congress, the NAS committee asserted that
most decisions about IFQs are appropriately made at the regional level. The
committee recommended to Congress that the design of any limited entry program
in relation to concentration limits, transferability, and distribution of shares will
depend on the objectives of each specific FMP, which underscores their
recommendation to provide flexibility to regional councils in designing IFQ and
other limited entry programs.
Some commercial fishermen and fishery scientists are concerned that problems
such as overcapitalization, waste, and bycatch can only be remedied through
individual quota management. Meanwhile, recreational fishermen are likely to seek
assurances that the recreational sector is considered in the development of IFQ
programs, especially in initial quota allocation.
Other commercial fishermen suggest that Congress authorize regional councils
to use alternative approaches to IFQs, such as cooperative arrangements.96 Some
commercial fishermen have formed fish harvesting cooperatives under the American
Fisheries Act (P.L. 105-277, beginning at 112 Stat. 2681-616) for pollock in the
Bering Sea and Aleutian Islands area) in an effort to address overcapitalization and
to avoid the wasteful race-for-fish.97 A fish harvesting cooperative represents a
93 (...continued)
Congress.
94 National Research Council, Sharing the Fish: Toward a National Policy on Individual
Fishing Quotas (Washington, DC: National Academy Press, 1999), p. 189.
95 In implementing IFQ programs, NAS notes that other factors include carefully developing
management structure and initial allocation formula, involving stakeholders in program
development, and including fishing communities in initial allocations.
96 On the other hand, some fishery scientists suggests that Congress replace the list of
vessels eligible to form cooperative arrangements under the American Fisheries Act
(contained within P.L. 105-277) with a regular transferable license limitation or individual
quota program.
97 A 2002 report to Congress on the impacts of the American Fisheries Act is available from
NOAA at [http://www.fakr.noaa.gov/npfmc/summary_reports/AFACongress202.pdf],
(continued...)

CRS-41
contractual agreement among eligible participants in a fishery to divide up the
available harvest quota and to catch the fish in a tempered manner. While
cooperative fishing is evidence of the benefits of individual quota management, there
are significant differences between federally-mandated IFQ programs and private
cooperative arrangements. As an alternative to IFQ programs, some commercial
fishermen suggest that NMFS and regional councils be authorized to allocate quota
to cooperatives.
Some environmental organizations assert that enhanced conservation measures
must be incorporated into IFQ programs as they are developed. These groups do not
wholly accept the belief that IFQs will result in enhanced conservation, and seek
stricter measures. They posit that IFQ programs should be held to higher standards
for monitoring and accountability to ensure that conservation is enhanced.
Additionally, some environmental and fishing groups have several concerns with IFQ
programs and argue that (1) the federal government should not award the right to
exploit a national resource without appropriate compensation to the public; (2)
allocation of an IFQ may engender a property right, which may be difficult to reduce
or rescind in the future without compensating the quota holder (i.e., subject to the
constitutional “takings” clause); (3) quota consolidation may drive smaller operators
out of business; (4) IFQs may reward “dirty” fishermen (those with high levels of
bycatch and discards) because initial allocations are often based on catch history; and
(5) IFQs may encourage fishermen to high-grade their catch, keeping only the most
valuable fish.
Several respondents note that the nature of the rights available through IFQ
programs should be carefully specified. For instance, if IFQs were issued for an area,
would that mean that IFQ holders would become eligible for compensation for the
loss of their rights to harvest if the area was reduced by the establishment of an MPA
or through major port developments and reclamations? Would Native American
fishery claims need to be settled before issuing IFQs? Should IFQs be permanent
rights or temporary privileges? Similar questions have arisen about permits and
leases for federal grazing lands. The federal government has explicitly stated that
private livestock grazing on federal lands is a privilege and not a right nor interest in
property. Nonetheless, ranches with access to federal forage often sell for a higher
price than they would without access to federal rangeland. The resulting value of the
grazing preference is capitalized into the net worth of the ranch base property and is
considered an asset by the rancher.98
Other comments include the following: (1) IFQs could be a useful tool for
managing certain recreational fisheries, such as Atlantic bluefin tuna, where a long
history is available and the fishing constituency well known; (2) coastal communities
should be given priority over corporate fishing and processing companies in initial
allocation of quota shares; and (3) reductions in processing capacity may also be
necessary to match reductions in fishing capacity; thus, fishing processors may seek
97 (...continued)
visited Aug. 9, 2004.
98 CRS Report IB96006 (archived), Grazing Fees and Rangeland Management, by Betsy
Cody and Pamela Baldwin, p. 8.

CRS-42
a “processor quota” program and other means to allow paced reductions in
processing capacity without a sudden or severe economic impact on local
communities.99 Individual processor quotas were specifically provided in §801
(Division B) of P.L. 108-199 as part of a Bering Sea and Aleutian Islands crab
rationalization program. Whether to mandate the consideration or prohibition of
processor quota in any IFQ program may be an issue during reauthorization, and the
unfolding experience with processor quota in the Alaska crab fishery provides
potentially useful background information.
In another development related to IFQs, the North Pacific Regional Council
amended its halibut and sablefish IFQ program to allow specific Gulf of Alaska
communities to purchase halibut and sablefish quota share and lease them to
community residents on an annual basis. The council designated 42 communities
within the Gulf of Alaska who are eligible to participate in this program.100 Whether
to specifically authorize the granting of IFQ shares to communities may be another
issue for discussion during reauthorization.
Fees, Cost Recovery, and Economic Rent. Section 303(b)(1) of the
MSFCMA establishes requirements for collecting fees for fishing permits. Section
304(d) authorizes the Secretary of Commerce to establish fees. The level of fees
charged may not exceed the administrative costs of issuing fishing permits, except
in individual quota and community development quota (CDQ) fisheries, where fees
recover management and enforcement costs.
The MSFCMA currently allows fees to be charged for (1) foreign fishing
permits and NMFS observer costs; (2) administrative costs of issuing fishing permits;
(3) enforcement and management costs in IFQ and CDQ fisheries; (4) administrative
costs for limited access system registry; (5) fishery reduction program assessments
(including vessel/permit buy-backs); and (6) the North Pacific observer program.101
Other than for fisheries managed under IFQs and CDQs, the MSFCMA does not
allow for management and enforcement cost recovery.
Cost recovery could be an important issue during reauthorization. The overall
performance of a fishery is often influenced by how fishery management is financed.
The typical practice — where 100% of management and enforcement costs are borne
99 Alternatively, in some cases, imports may be available to cover any reductions in locally
available fish.
100 For more information, see 69 Federal Register 23681-23694, Apr. 30, 2004.
101 Some commercial fishermen note that the North Pacific Regional Council has authority
for a fee-based observer program, but has not yet implemented the program. The authority
for a fee-based program includes a cap on observer fees of 2% of the unprocessed harvest
value. Under the current “pay as you go” system, many smaller vessels are paying in excess
of 2% of revenues, while other larger operations pay a fraction of that amount. This
disparity undermines support for the observer program. They suggest that NMFS develop
the best observer program they can within the budget constraints of a 2% fee, equitably
distributed over the whole fleet. This might be a model for how user fees could function,
but until this program is implemented and demonstrates success, authority for further
fee-based programs will meet significant resistance from commercial fishermen.

CRS-43
by the General Treasury102 — is alleged to inefficiently use resources for research,
decision-making, and enforcement. When resource users do not share some of the
cost for resource management, they are allegedly less attentive to the need for
efficiency. The cost of this inefficient use accrues to the management agency and
increases the overall cost of managing the resource. Fishery economists suggest that
such inefficiencies are reduced when users of natural resources, especially
commercial users, bear some of the costs for managing these resources. Thus, they
suggest that Congress consider user charges to recover a significant portion of fishery
management and enforcement costs.
Some fishery managers assert that the cost recovery authority currently in the
MSFCMA (§304(d); 16 U.S.C. §1854(d)) for IFQ and CDQ systems is too
restrictive. They contend that statutory specification of when, where, and how fees
are collected introduces administrative inefficiencies that reduce the benefit of the
fees, and actually prevent consolidation of fee collection with existing state fees.
Further, any specific limitation of the fees to a percent of ex-vessel value and the
specific deductions and exceptions, in their opinion, prevent NMFS from recovering
reasonable management and enforcement costs. These managers suggest that the
language at §304(d) could be amended to allow NMFS more flexibility in working
with the industry to develop a simple, low-cost, effective fee collection system.
Some fishery scientists suggest that, beyond recovering the costs of management
and enforcement, the public should receive a share of the economic rent garnered
from private use of a public resource. These advocates maintain that Congress
should consider imposing fees on quota or harvest to provide a source of revenue and
compensate the public. They believe that establishing a fee system for harvesting
fish would put fisheries on par with other public resources (e.g., timber and energy
resources).103 These funds could contribute to recovering management and
enforcement costs (as discussed above). These scientists note that rent extraction,
beyond cost recovery, could support fishery research or assist fishing communities
or fishermen displaced by IFQ programs.104 Those supporting this approach explain
that, in an IFQ fishery, compensation could occur through capturing a portion of the
102 Government expenditures on U.S. fisheries currently run about $1 billion a year. These
government expenditures are directed at an industry generating about $3.5 billion in
ex-vessel revenue. That is, government expenditures are roughly 30% of landed value. At
the federal level, the proportion of expenditures to landed value is 50%. The landings value
of fish caught in federal waters (i.e., from 3 to 200 miles) averages $1.8 billion in recent
years while the amount of federal government expenditures is approximately $0.9 billion.
See P. Andersen, K. J. G. Sutinen and K. Cochran, Paying for Fishery Management:
Economic Implications of Alternative Methods of Financing Management, presented to the
IXth Conference of the International Institute of Fisheries Economics and Trade (Tromso,
Norway: July 8-11, 1998; hereafter “Economic Implications”). By inference, these
estimates imply that ex-vessel revenues from state waters are about $1.7 billion per year,
while state government expenditures are roughly $100 million — approximately 7% of
landed value.
103 National Research Council, Sharing the Fish: Toward a National Policy on Individual
Fishing Quotas (Washington, DC: 1999), p. 208 (Hereafter “Sharing the Fish”).
104 Sharing the Fish, p. 209.

CRS-44
“windfall gains” generated from the initial transfer of the public resource into private
hands (i.e., the initial allocation of fishing quota shares).105
Some commercial fishermen claim that extracting economic rent from fisheries
managed under open access will impoverish fishermen. Because there are no
incentives to constrain effort, open-access fisheries tend toward overcapitalization,
which dissipates economic rent and, on average, reduces profit. They suggest that
economic rent should be extracted only from fisheries where access is limited and
harvesters have a secure right to a certain quantity of the total allowable catch (e.g.,
individual fishing quota programs).
Additional comments about fees, cost recovery and economic rent include:
! NMFS has a history of using funds collected from a specific region
or a specific purpose for general expenditures. Instead, fees, cost
recovery, and economic rent should be used in the region that
generates the funds, specifically, for data collection, management,
and enforcement.106
! User fees should be tied to co-management of the resource. If a user
pays, the user should have a voice in how the money is used and
how the resource is managed.107
! By tying user fees to research, those paying may have a stronger
voice in how research is conducted, potentially reducing the
independence and quality of the science.
! Quota sales typically underestimate the long-term value of resource
rights and only a fraction of the discounted value of expected future
economic profit is realized by the first transaction.
! Congress might consider fees and rent capture in discussions about
IFQ program standards.
Fishery Subsidies. Section 312 of the Sustainable Fisheries Act of 1996
(P.L. 104-297, §312(b)(note)) directed the Secretary of Commerce to establish a task
force to study and report to Congress on the role of the federal government in
subsidizing the expansion and contraction of fishing capacity. The report of this
105 Sharing the Fish, p. 207.
106 Others perceive a danger in tying fees generated by a region to expenses in that region
as this approach could create incentives for managers to keep catch limits artificially or
inappropriately high to protect budgets. They feel it would be much better to assure that
science and management are objective by not connecting budgets with harvest levels. In
addition, a low-revenue fishery may require significant research, perhaps because it affects
other target fisheries. Such a situation could lead to irrevocable closures if funds for
monitoring required to open a fishery were lacking.
107 Collaborative management options for local research and management involving industry
cooperation (e.g., stock assessment surveys conducted aboard commercial fishing vessels)
might help shift some costs to industry, as well as engage those dependent upon
management decisions, without impinging upon the objectivity of the science.

CRS-45
Federal Investment Task Force was published in July 1999.108 The Task Force
concluded that any empirical analysis of capacity and capacity utilization needed to
consider the fishing activity of recreational anglers and recommended that specific
modifications be made to the Capital Construction Fund, Fisheries Obligation
Guarantee, and other assistance programs.
Environmental organizations active in the federal investment study note that
fishery subsidies have emerged as a significant fishery management issue. As
evidence, they note that policymakers are increasingly recognizing the direct
relationship between subsidies, fleet overcapacity, and overfishing, as well as their
effects on international trade in fish products. For example, in February 1999, the
United Nations Food and Agriculture Organization (FAO) adopted the International
Plan of Action (IPOA) for the Management of Fishing Capacity, which recognizes
fishery subsidies as an important driver of overcapacity.109 Moreover, the need to
address the problem of fishery subsidies has been recognized by the World Bank, the
Asian Development Bank, the U.N. Commission on Sustainable Development, the
World Trade Organization (WTO), the Organization for Economic Cooperation and
Development (OECD), and the Asia-Pacific Economic Cooperation forum (APEC).
In the months and years ahead, the management of fishery subsidies will likely
be the subject of continuing technical and diplomatic discussions within FAO,
OECD, WTO, and APEC. Environmental groups note that the United States has
played a leading role in bringing attention to the fishery subsidies issue, and add that
fishery subsidies in the United States are far smaller than in many other major fishing
nations. In their opinion, Congress will likely be called upon to act on this issue,
through U.S. domestic policy and international efforts to reduce fishery subsidies.
In addition, some fishery scientists suggest that a subtle relationship exists
between subsidies and the collection of fees (as discussed below). By not recovering
the costs of management and enforcement, the United States, in their opinion, is
effectively subsidizing fishing operations. In essence, they define subsidy as a sale
or transaction for a good or service by a government at less than the fair market price
(where fair market is defined as a willing buyer and willing seller). Thus, they
contend that, because the nation’s fishery resources (managed by the federal
government) are more easily available than if a private owner controlled access, the
fishery “market” is by definition not “fair.” Hence, a subsidy exists. Moreover,
others note that the Uruguay Round of WTO negotiations defined subsidies as having
three basic elements: (1) a financial contribution, (2) by a government or any public
body within the territory of a Member, (3) which confers a benefit.
Fishing Communities. Section 3(16) of the MSFCMA (16 U.S.C.
§1802(16)) defines fishing community as “a community which is substantially
dependent on or substantially engaged in the harvest or processing of fishery
108 See [http://www.nmfs.noaa.gov/sfa/ITF.html], visited Aug. 9, 2004.
109 U.N. Food and Agriculture Organization, Fisheries Department, The International Plan
of Action for the Management of Fishing Capacity (Rome, Italy, Feb. 1999). This document
is available at [http://www.fao.org/DOCREP/006/X3170E/x3170e04.htm], visited Aug. 10,
2004.

CRS-46
resources to meet social and economic needs, and includes fishing vessel owners,
operators, and crew and United States fish processors that are based in such
community.”
NOAA has further interpreted fishing community to mean “a social or economic
group whose members reside in a specific location and share a common dependency
on commercial, recreational, or subsistence fishing or on directly related fisheries-
dependent services and industries (for example, boatyards, ice suppliers, tackle
shops).”110 NOAA’s expanded interpretation of fishing community recognizes that
more businesses depend on fishing activities than just fishing vessels, processors, and
wholesale plants. For instance, businesses that sell supplies and gear and those
devoted to marine services such as financial settlements and bookkeeping often
depend totally on fishing activities and could be considered part of the fishing
community. This interpretation recognizes that every change in mesh-size
regulations changes the inventory value in ship supply stores; every reduction in the
number of vessels reduces bookkeeping services. Such an interpretation recognizes
that the fishing community extends beyond actual fishing activities and the
processing of product, and that social and economic problems associated with the
decrease in support services can seriously degrade the quality of life and economic
health of communities.
Some commercial fishermen are concerned that the geographically-based
interpretation of fishing community could harm fishing communities that are based
on shared interest rather than a shared place.111 Congress may be asked to modify
this definition to clarify how this term should be used in social and economic
analyses of fishery management actions. Specifically, commercial fishermen and
fishery scientists may suggest that Congress include “virtual communities”112 in the
definition of fishing communities.113 Conversely, recognition of virtual communities
may be opposed by rural communities, which are likely to favor a geographic
definition. These groups, tied to a place and often with limited economic
opportunities, may feel threatened if virtual communities displace what they perceive
to be their traditional fisheries.114
110 50 C.F.R. §600.345(b)(3).
111 For example, fishing cooperatives in the Bering Sea walleye pollock fishery and in the
Pacific whiting fishery may be considered communities of individuals who share an interest
in these fisheries, but are drawn from a diverse geographic base. In addition, not all
services, or even fishermen, for a given port community reside in that port.
112 National Academy of Sciences, Sustaining Marine Fisheries (Washington, DC: 1999),
p. 97.
113 However, virtual communities may be difficult to marry to economic analysis,
particularly when indirect impacts are to be analyzed. For limited access systems, 16 U.S.C.
§1853(b)(6) does allow virtual communities to be assessed in conjunction with place-based
communities, creating a more complete view.
114 However, potential tools to protect place-based communities are being implemented (e.g.,
regionalization in the Bering Sea and Aleutian Islands crab rationalization program).

CRS-47
Small Boat Fleets and Family Fishermen. Although small boat fleets and
family fishermen are not given general consideration in the MSFCMA, these
individuals are mentioned specifically in §303(d)(4)(A)(i) that governs aid in
financing the acquisition of individual fishing quota.
The theme of “small” versus “large” fishing operations, whether vessels or
service providers, is a very important issue in fishing communities and the industry,
where many small operators perceive MSFCMA bias toward consolidation and large
operations. To address these concerns, some commercial fishing interests suggest
amending the MSFCMA to incorporate specific provisions to foster and support
small-boat and family fishing operations. These interests are alleged to have a strong
commitment to resource sustainability and possess culturally derived desires to pass
along “their” fishery to future generations. One proposal to provide additional
support for small boat and family fisherman is to restrict U.S. imports to fish
harvested by fishing fleets that use conservation measures comparable to those
required in the United States. However, some fishery scientists note that providing
additional support to small fishermen by restricting access to U.S. markets might
violate World Trade Organization obligations and international law, and violate U.S.
commitment to remove subsidies that support overcapitalization.
Transfer Pricing. Commercial fishing interests are concerned about transfer
pricing, especially in North Pacific fisheries. This is not currently addressed in the
MSFCMA. Transfer price is the price charged by one company to a related company
for allocating income and expenses among themselves. These “intra-firm transfers”
are covered under the Internal Revenue tax code at 26 U.S.C. §482. Some U.S.
fishing companies allegedly are not properly reflecting income attributable to their
operations within the United States, while some foreign parent companies may be
using pricing strategies to avoid higher U.S. taxes. In addressing “abusive” transfer
pricing, Congress could consider amending the MSFCMA to require full disclosure
of all financial documents and transfer pricing criteria to U.S. authorities.
Others believe that this issue is not germane to reauthorizing the MSFCMA, and
suggest that this “tax and trade” issue is more appropriate to the jurisdiction of other
congressional committees — such as House Ways and Means and Senate Finance.
The Definition of Recreational Fishing. Some note that clarifying the
definition of recreational fishing would be beneficial to fishery management. They
suggest that Congress define recreational fishing as any fishery for which catch is not
sold. In their opinion, this small change would clarify the distinction between
commercial and recreational fisheries. Others, however, caution that defining
recreational and subsistence fishermen who sell small amounts of catch to cover trip
expenses as “commercial” might result in substantial administrative and enforcement
expenses to deal with the potentially large number of individuals who sell small
quantities of product.
The Private Cost of Resource Management. The MSFCMA requires
that overfished stocks be restored within 10 years. Some assert that 10 years is a long
time for an individual or company, dependent on a fishery, to endure substantially
reduced earnings with no guarantee of recovering those losses and considerable
uncertainty about their potential future earnings. A viable consideration, in their

CRS-48
opinion, is the promotion of certainty for those vessel owners, operators, and crew
who forgo earnings today for potential gains tomorrow. They note that current
analyses examine the potential long-term yields and earnings streams, but that these
analyses rarely incorporate risk assessment.
Federal Assistance to Fishermen. Some environmental groups believe
that many commercial fishermen share their interest in rebuilding overfished stocks
and promoting long-term resource sustainability. To rebuild fish stocks, these groups
would like Congress to consider significant reductions in fishing effort, coupled with
federal assistance for fishermen to relieve the economic burden of reduced fishing
opportunities.
Fishing Vessel and Crew Safety. Some commercial fishermen contend
that it is imperative that fishery management explicitly considers whether or not
regulations will compel fishing captains and crew to work under unsafe conditions.
Although one of the national standards (16 U.S.C. 1851(a)(10)) already requires that
conservation and management measures “promote the safety of human life at sea,”
these fishermen suggest that additional congressional action may be necessary to
more specifically address this issue.
Adequacy of Appropriations
An issue that NMFS might raise during reauthorization discussions is that, in
an era of reduced federal appropriations and shifting federal priorities, its
responsibilities and duties continue to expand. Specifically, implementing the
provisions of the Sustainable Fisheries Act is a major undertaking, requiring the
coordination of NMFS headquarters and regional offices, the eight regional fishery
management councils, and state agencies. NMFS may claim that delays in
implementation were directly tied to budgetary constraints. Congress might consider
a number of options to address these concerns. As noted previously, fees or other
forms of rent extraction could be used to fund at least some management and
enforcement. Congress might also consider increasing appropriations to NMFS or
including specific instructions about how funds are to be used.
For FY2005, the National Oceanic and Atmospheric Administration requested
about $735 million for fisheries. The U.S. Coast Guard is estimated to spend
approximately $400 million on fishery law enforcement (mostly for domestic fishery
regulations), and these expenditures are projected to grow rapidly. Expenditures on
other federal fishery programs are conservatively estimated to be in the neighborhood
of $50 million per year. While these other programs are not fishery management per
se, they do indirectly affect management efforts (e.g., fishing vessel compensation,
fishing vessel contingency fund, trade promotion). Coastal states are estimated to
spend between $100 to $150 million annually on fishery management.115
115 Economic Implications.

CRS-49
Congressional Outlook
Interested constituencies feel that Congress has been generally very supportive
of measures to conserve and manage living marine resources, including specifically
the Magnuson-Stevens Fishery Conservation and Management Act. While the
history of the Act includes court challenges to agency interpretation of congressional
intent, these groups believe that Congress has been generally understanding of the
difficulties in balancing resource conservation, sustainable resource use, and
protection of the marine environment. The issues discussed in this report set before
Congress a varied array of concerns, with little clear focus as to which will gain
prominence in the reauthorization debate. Recent public sentiment, always a strong
factor in fishery conservation and management issues, has focused on concerns for
protecting fish habitat, restoring depleted fish stocks, minimizing bycatch and
bycatch mortality, and reducing fishing capacity. Specific interests of environmental
protection groups, Native Americans, and commercial and recreational fishing
industries may call attention to additional issues. Although congressional oversight
in the early stages of the reauthorization process focused attention on numerous
issues, no issues appear to demand immediate action. Since the requirements of the
MSFCMA did not expire when the authorization of appropriations was not extended
beyond FY1999, the reauthorization process could be delayed until sufficient
congressional will is mustered to deal with the various issues. It is possible that, in
response to the recent recommendations by the Pew Oceans Commission and the
U.S. Commission on Ocean Policy, Congress might address MSFCMA
reauthorization in the context of broader ocean policy issues.

CRS-50
Appendix:
Oceans Commissions’ Recommendations
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Science:
Strengthened
Recommendation 19 — 1. Congress should
Develop specific, measurable criteria and
role
amend the Magnuson — Stevens Fishery
indicators for the health and integrity of marine
Conservation and Management Act and related
ecosystems by conducting a Committee of
statutes to require Regional Fishery
Scientists process similar to that followed under
Management Councils (RFMCs) and interstate
the National Forest Management Act.
fisheries commissions to rely on their Scientific
and Statistical Committees (SSCs),
incorporating SSC findings and advice into the
decision-making process. In keeping with this
stronger role, SSC members should meet more
stringent scientific and conflict of interest
requirements, and receive compensation.116
Management and
Recommendation 19 — 2. Scientific and
Conservation decisions should be based upon
allocation
Statistical Committees (SSCs) should supply
recommendations from regional science and
decisions
Regional Fishery Management Councils with the
technical teams — composed of federal, state, and
scientific advice necessary to make fishery
academic scientists. Regional science groups
management decisions. Such information could
should recommend ecologically safe catch limits
include reports on stock status and health,
and other conservation criteria for a fishery
socioeconomic impacts of management
management plan, informed by — and consistent
measures, sustainability of fishing practices, and
with — goals, indicators, and targets of a regional
habitat status. In particular, the SSCs should
ecosystem plan.
determine allowable biological catch based on
the best scientific information available.
New fisheries
No similar recommendation.
Enact an emerging fisheries policy. The purpose of
the policy should be to allow industry
development of new fisheries in a manner that
promotes sound scientific management and long-
term conservation of the resources being
developed and the relevant ecosystem.
(Continued...)
(Continued on next page...)
(Continued on next page...)
116 To ensure a strengthened SSC, MSFCMA amendments should require the following: (1) each RFMC should
nominate candidates for service on its SSC. Nominees should be scientists with strong technical credentials and
experience, selected from federal, state, or tribal governments or academia. Private sector scientists who are
technically qualified may also be nominated if they meet the conflict of interest requirements, although the SSC
should not be constituted as a representational body; (2) the National Oceanic and Atmospheric Administration
(NOAA) should evaluate the qualifications and potential conflicts of interest of SSC nominees through an
independent review process designed by a credible, scientific organization. Ultimately, SSC appointments should
be approved by the NOAA Administrator; (3) SSC members should serve for fixed terms to allow for rotation
and addition of new members over time; and (4) like RFMC members, participants in the SSC (or their home
institutions) should be compensated for time spent on RFMC business.

CRS-51
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Independent
Recommendation 19 — 4. The National Marine
Create a mechanism that regularly provides
review
Fisheries Service, working with the Regional
independent scientific oversight. Establish a
Fishery Management Councils and the interstate
Marine Fisheries Oversight Commission along the
fisheries commissions, should develop a process
lines of the Marine Mammal Commission, or
for independent review of the scientific
require periodic scientific audits by the National
information relied on by Scientific and
Academy of Sciences, or both. The work of the
Statistical Committees.117
regional science groups should be regularly
subject to independent peer review.
International
Recommendation 19-25. The U.S. Department
No similar recommendation.
focus
of State, working with the National Oceanic and
Atmospheric Administration, should review and
update regional and bilateral fishery agreements
to which the United States is a party, to ensure
full incorporation of the latest science and
harmonize those agreements with the Fish
Stocks Agreement. The United States should
fulfill existing international fishery management
obligations, including full funding of U.S.
commitments.
New Council
Recommendation 19 — 14. Congress should
No similar recommendation.
member
amend the Magnuson-Stevens Fishery
training
Conservation and Management Act to require
that all newly appointed Regional Fishery
Management Council (RFMC) members
complete a training course within six months of
their appointment. The National Marine
Fisheries Service should contract with an
external organization to develop and implement
this training course. After six months, a new
member who has not completed the training
should continue to participate in RFMC
meetings, but should not be allowed to vote.118
Socioeconomic
No similar recommendation.
The socioeconomic objective of American marine
objective
fishery policy should be to conserve and manage
fisheries in order to support diversity, flexibility,
resilience, and adaptability within the industry and
fishing communities.
117 The process should include three distinct procedures: (1) a standard annual review by regional scientists to
certify that the correct data and models are being used; (2) an enhanced review to evaluate the models and
assessment procedures. To ensure that these reviews are independent, a significant proportion of the reviewers
should come from outside the region and be selected by a group such as the Center for Independent Experts.
These types of reviews should be conducted on a three- to five-year cycle, or as needed, to help ensure that the
latest methods and approaches are being used; and (3) an expedited review to be used when results are extremely
controversial or when the normal review process would be too slow. In these cases, all reviewers should be
selected by a group such as the Center for Independent Experts.
118 The training course should (1) be open to current RFMC members and other participants in the process as
space permits; and (2) cover a variety of topics including fishery science and basic stock assessment methods;
social science and fishery economics; tribal treaty rights; the legal requirements of the Magnuson — Stevens
Fishery Conservation and Management Act, the National Environmental Policy Act, the Administrative
Procedures Act, and other relevant laws or regulations; conflict of interest policies for RFMC members; and the
public process involved in developing fishery management plans.

CRS-52
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Harvests:
Exploitation
Recommendation 19-3. Each Regional Fishery
Core conservation decisions should be made by
limits
Management Council (RFMC) should set
the NMFS, or a revamped fishery service within a
harvest limits at or below the allowable
new independent oceans agency. These decisions
biological catch determined by its Scientific and
should originate at the regional offices with
Statistical Committee. The RFMCs should begin
oversight by the national headquarters office. At a
immediately to follow this practice, which
minimum, these decisions include setting
should be codified by Congress in amendments
ecologically safe levels of exploitation (total catch
to the Magnuson — Stevens Fishery
and bycatch limits); specific habitat and area
Conservation and Management Act.
protections; and specific protected species
requirements (threatened and endangered marine
mammals, sea turtles, seabirds, and fish). (p. 109);
Implement precautionary total allowable catches
(TAC), or alternative fishing privileges that
demonstrably control exploitation within
ecologically safe limits. Allocate privileges in
ways that properly align incentives, allow for the
orderly operation of a fishery (e.g., individual or
community fishing quota programs), and maintain
flexibility, resilience, and adaptability within the
industry and fishing communities.
Deadline for
Recommendation 19 — 5. Each Regional
No similar recommendation.
ABC
Fishery Management Council should set a
determination
deadline for its Scientific and Statistical
Committee (SSC) to determine allowable
biological catch. If the SSC does not meet that
deadline, the National Marine Fisheries Service
Regional Science Director should set the
allowable biological catch for that fishery.
Separation of
No similar recommendation.
Separate conservation and allocation decisions.
conservation and
Create a clear separation between conservation
allocation
and allocation decisions in the fishery-
management planning process. The regional
fishery councils should make allocation decisions.
Allow individual fisheries to develop their own
allocation plans pursuant to approval and
coordination of plans by the regional fishery
councils. Allow regional councils to improve upon
or set higher conservation standards than those
established in federal law or by NMFS, but ensure
that established conservation standards are not
undercut in the allocation process. NMFS should
retain authority to review a council’s allocation
decisions for consistency with conservation.
NMFS should retain responsibility for
implementation after the conservation and
allocation planning processes are completed.

CRS-53
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Research:
Council needs to
Recommendation 19 — 7. The Regional Fishery
No similar recommendation.
NMFS
Management Councils and their Scientific and
Statistical Committees should develop an
annual, prioritized list of management
information needs and provide it to the National
Marine Fisheries Service (NMFS). NMFS
should incorporate these needs to the maximum
extent possible in designing its research,
analysis, and data collection programs.
Collaborative
Recommendation 19 — 9. The National
No similar recommendation..
projects
Oceanic and Atmospheric Administration
(NOAA) should create an expanded, regionally-
based cooperative research program that
coordinates and funds collaborative projects
between scientists and commercial, tribal, and
recreational fishermen. NOAA should develop a
process for external evaluation and ranking of
all cooperative research proposals to ensure the
most worthwhile projects are funded, the most
capable performers are undertaking the research,
and the information produced is both
scientifically credible and useful to managers.
Toxics
No similar recommendation.
Sufficient resources should be devoted to studying
the effects of toxic substances in the marine
environment. Needed research includes (a) studies
on mercury in fish and other species that are
located near offshore oil rigs and in other areas
where species may be affected by drilling muds
and contaminated sediments.
Gear
No similar recommendation.
Fund a gear-modification research program to
modification
redesign mobile bottom gear to reduce habitat
damage in fisheries that cannot be viably fished
without such gear.
Funding
No similar recommendation.
Funds received from allocating fishing privileges
beyond cost recovery should go toward improved
fishery research, management, and enforcement.
Citizen suits
No similar recommendation.
Allow citizen suits. Include a citizen suit provision
in fishery conservation and management laws like
those in most other major federal environmental
statutes. Citizens must be allowed to hold fishery
managers who violate the law accountable, or to
force reluctant or negligent fishery management
agencies to enforce the law. (p. 110)

CRS-54
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Saltwater
Recommendation 19 — 8. The National Marine
No similar recommendation.
angling license
Fisheries Service (NMFS), working with states
and interstate fisheries commissions, should
require that all saltwater anglers obtain licenses
to improve in-season data collection on
recreational fishing. NMFS should review
existing saltwater angler licensing programs to
determine which approaches best facilitate the
collection of data. Based on this review, existing
programs should be modified as needed and
used wherever possible, developing new
programs only if necessary. Priority should be
given to fisheries in which recreational fishing is
responsible for a large part of the catch, or in
which recreational fishermen regularly exceed
their allocated quota.
Planning
process:
Timely
Recommendation 19 — 6. Once allowable
No similar recommendation.
biological catch is determined, whether by the
Scientific and Statistical Committee or the
National Marine Fisheries Service (NMFS)
Regional Science Director, the Regional Fishery
Management Council should propose a fishery
management plan in time for adequate review
and approval by NMFS.
Suspend fishing
Recommendation 19-6. If the plan is not in
If a fishery or regional fishery management
if not complete
place in a timely fashion, NMFS should suspend
council fails to revise or update an implementation
all fishing on that stock until it is able to review
and allocation plan when required, a default plan
the adequacy of the management plan.
should be imposed by the federal fishery agency.
Consistent state
Recommendation 19 — 10. Congress should
No similar recommendation.
fishery
develop new statutory authority, similar to the
management
Atlantic Coastal Fisheries Cooperative
commission
Management Act, to support and empower the
authority
Gulf States and Pacific States Fisheries
Management Commissions. All interstate
management plans should adhere to the national
standards in the Magnuson — Stevens Fishery
Conservation and Management Act, and the
federal guidelines implementing these standards.
States should participate in the development of
the guidelines to ensure they are applicable to
interstate plans.
Limited access
No similar recommendation.
Limit access and entry to all fisheries. Subject all
participants in U.S. fisheries to permitting or
licensing, both a general fishing permit/license as
well as fishery-specific permits/licenses. Require
that limited access/entry programs be designed to
keep the level of catching capacity and fishing
power in any fishery slightly under the level that is
ecologically sustainable.

CRS-55
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Transboundary
Recommendation 19 — 11. Where a fish stock
No similar recommendation.
stocks
crosses administrative boundaries, the National
Oceanic and Atmospheric Administration should
ensure that a single state, Regional Fishery
Management Council (RFMC), interstate marine
fisheries commission, or NOAA itself is
designated as the lead authority.119
Council
appointments:
Governor’s
Recommendation 19 — 12. Congress should
No similar recommendation.
nominations
amend the Magnuson — Stevens Fishery
Conservation and Management Act to require
governors to submit a broad slate of candidates
for each vacancy of an appointed Regional
Fishery Management Council seat. The slate
should include at least two representatives each
from the commercial fishing industry, the
recreational fishing sector, and the general
public.
NOAA
Recommendation 19 — 13. Congress should
No similar recommendation.
Administrator’s
give the Administrator of the National Oceanic
responsibility
and Atmospheric Administration responsibility
for appointing Regional Fishery Management
Council (RFMC) members, with the goal of
creating RFMCs that are knowledgeable, fair,
and reflect a broad range of interests.
Enforcement:
Funding
Recommendation 19 — 17. The National
Funds received from allocating fishing privileges
Marine Fisheries Service should expand its use
beyond cost recovery should go toward improved
of Joint Enforcement Agreements to implement
fishery research, management, and enforcement.
cooperative fisheries enforcement programs with
state agencies. The U.S. Coast Guard should
also be included as an important participant in
such agreements.
Unified plan
Recommendation 19 — 18. The National
No similar recommendation.
Marine Fisheries Service and the U.S. Coast
Guard should strengthen cooperative
enforcement efforts at the national level by
developing a unified strategic plan for fishery
enforcement that includes significantly increased
joint training, and at the regional and local
levels, by developing a stronger and more
consistent process for sharing information and
coordinating enforcement.
119 In general: (1) for interjurisdictional fisheries that occur primarily in state waters, the state (if only one state
is involved), or the relevant interstate fisheries commission, should take the lead within both state and federal
waters; (2) for fisheries that involve two or more RFMCs, NOAA should designate the lead; (3) for fisheries that
have substantial activities in both state and federal waters, the relevant authorities should determine a lead. If
they are unable to agree within a reasonable time period (not more than six months), NOAA should designate
the lead; (4) jurisdiction for highly migratory species should remain in its current configuration; and any other
disputes regarding jurisdiction should be resolved by NOAA.

CRS-56
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Dedicated
access
privileges:
Authorize
Recommendation 19 — 15. Congress should
Allocate fishing privileges to align incentives,
amend the Magnuson — Stevens Fishery
allow for the orderly operation of a fishery, and
Conservation and Management Act to affirm
maintain flexibility, resilience, and adaptability
that fishery managers are authorized to institute
within the industry and fishing communities.
dedicated access privileges. Every federal,
Individual or community fishing quotas (IQs or
interstate, and state fishery management entity
CQs), if properly monitored and enforced, appear
should consider the potential benefits of
to be among the more effective allocation
adopting such programs.
mechanisms.
Guidelines and
Recommendation 19-15. Congress should direct
For instances where IQs or CQs are chosen to
standards
the National Marine Fisheries Service to issue
allocate direct catch limits, they should be
national guidelines for dedicated access
implemented according to the following three
privileges that allow for regional flexibility in
national standards: 1) periodically allocate quota
implementation.120
using a combination of catch history records, bids
in the form of offered royalty payments on the
catch, and conservation commitments offered by
the bidder. Partition quota into different categories
for different types of fishing operations before
being auctioned — some for large vessels and
corporations, some for owner operators and
smaller vessels, some for new entrants, etc. Quota
should also not be transferable among these
different categories; 2) regularly review and
evaluate quota programs to maintain flexibility in
anticipation of changes within the industry and
fishing communities resulting from the transition
to adaptive, ecosystem-based management; assess
the performance of the program to ensure it
continues to meet the objectives of the national
policy; and revise the program if it fails to meet
clear conservation performance standards,
timetables, and other evaluation criteria; and 3)
prevent excessive consolidation and concentration
of economic power by establishing an excessive
shares cap to limit the amount of quota any one
person or corporation can own.
120 At a minimum, the national guidelines should require dedicated access programs to: 1) specify the biological,
social, and economic goals of the plan; recipient groups designated for the initial quota shares; and data
collection protocols; 2) provide for periodic reviews of the plan to determine progress in meeting goals; 3) assign
quota shares for a limited period of time to reduce confusion concerning public ownership of living marine
resources, allow managers flexibility to manage fisheries adaptively, and provide stability to fishermen for
investment decisions; 4) mandate fees for exclusive access based on a percentage of quota shares held. These user
fees should be used to support ecosystem-based management. Fee waivers, reductions, or phase-in schedules
should be allowed until a fishery is declared recovered or fishermen’s profits increase; 5) include measures, such
as community-based quota shares or quota share ownership caps, to lessen the potential harm to fishing
communities during the transition to dedicated access privileges; and 6) be adopted only after adequate public
discussion and close consultation with all affected stakeholders, to ensure community acceptance of a dedicated
access plan prior to final Regional Fishery Management Council approval.

CRS-57
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Capacity
reduction:
Objectives
Recommendation 19-16.The National Oceanic
For some severely depleted fisheries, it will be
and Atmospheric Administration (NOAA)
necessary to develop a plan to reduce capacity
should take appropriate steps to permanently
initially and to provide a mechanism that allows
reduce fishing capacity to sustainable levels.121
appropriate increases in catching capacity as the
stock rebuilds. Each plan should set a catch
capacity and fishing power goal appropriate for the
fishery and require mechanisms and schedules for
achieving that goal if the fishery has excess
capacity. Capacity goals should be based upon
appropriate ecological, social, and economic
analyses of the relevant fishery and ecosystem.
The goal should be stated as a clear, measurable,
and objective factor, or set of factors, that fairly
represent the catching capacity or fishing power of
the fleet.
Buyback
No similar recommendation.
Reduce fishing capacity, where necessary, with
programs
transitional buyback programs and provide other
transition assistance for displaced fishermen and
affected fishing communities. Such programs
should retire capacity permanently rather than
allowing it to shift to other fisheries; restrict
activation of latent fishing capacity in the buyback
fishery. Place royalty payments in a secure fund to
be used initially for buybacks and community
economic development and then for cost recovery.
Reduce subsidies
Recommendation 19 — 16. Congress should
Reduce the incentives and subsidies that could
repeal all programs that encourage
encourage remaining fishery participants to
overcapitalization of fishing fleets, including the
increase their fish catching capacity.
Fisheries Finance Program (formerly the Fishing
Vessel Obligation Guarantee Program) and
those sections of the Capital Construction Fund
that apply to fisheries.
121 The following actions will assist in reducing overcapitalization in fisheries: 1) to the maximum extent
practicable, capacity reduction programs should be funded by those who profit from them — the fishermen
remaining in the fishery; 2) federal contributions to capacity reduction programs should only be made where
additional effort is prohibited from entering the fishery. The highest priority for public funding of capacity
reduction should be given to fisheries that grant dedicated access privileges to participants; 3) NOAA should
monitor capacity reduction programs to determine whether they are meeting their objectives and to ensure that
vessels removed from U.S. fisheries do not contribute to overcapitalization in other nations; and 4) fishermen
should be allowed to transfer existing Capital Construction Fund accounts into Individual Retirement Accounts
or other appropriate financial instruments that do not promote overcapitalization.

CRS-58
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Vessel
Monitoring
System:
Require for all
Recommendation 19 — 19. The National
No similar recommendation.
commercial
Marine Fisheries Service (NMFS), working with
vessels and
the Regional Fishery Management Councils
charter/party
(RFMCs), the U.S. Coast Guard, and other
boats
appropriate entities, should maximize the use of
the Vessel Monitoring System (VMS) for
fishery-related activities. VMS with two-way
communication capability and other features that
assist personnel in monitoring and responding to
potential violations should be required over time
for all commercial fishing vessels receiving
permits under federal fishery plans, including
party and charter boats that carry recreational
fishermen. NMFS and RFMCs should also
identify state fisheries that could significantly
benefit from VMS implementation.
Coast Guard
Recommendation 19 — 20. The U.S. Coast
No similar recommendation.
lead integration
Guard should be the lead organization in
managing the integration of a fishery Vessel
Monitoring System (VMS) database into the
larger maritime operations database and should
work with the National Marine Fisheries Service
to ensure effective use of VMS data for
monitoring and enforcement.
New entrants to
No similar recommendation.
Each fishery should design a mandatory
fisheries
apprenticeship program to create a mechanism for
new entrants to the fishery. These programs should
foster improved stewardship through training in
conservation and responsible fishing practices.
Only those prospective new entrants who complete
the program can receive a license.
New fisheries
No similar recommendation.
Enact an emerging fisheries policy. The purpose of
the policy should be to allow industry
development of new fisheries in a manner that
promotes sound scientific management and long-
term conservation of the resources being
developed and the relevant ecosystem. Potential
development of new fisheries should be allowed
through exploratory fishing permits. To obtain
such a permit, applicants should work with the
relevant fishery management authority to develop
a research and management plan detailing how the
necessary stock assessment and other research on
and management of the stocks proposed for the
new fishery will be funded and conducted.
Matching grants should be available for the
industry to assist with management and
administrative costs. If approved, the new fishery
should only be allowed to expand if accumulated
knowledge shows the fishery can grow in an
ecologically sustainable manner.

CRS-59
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Ecosystem
management:
Primary
No similar recommendation.
Redefine the principal objective of American
objective
marine fishery policy to protect marine
ecosystems. The principal objective of American
fishery policy should be to protect the long-term
health and viability of fisheries by protecting,
maintaining, and restoring the health, integrity,
productive capacity, and resilience of the marine
ecosystems upon which they depend. This
objective should apply to all U.S. ocean waters.
Establish an explicit statutory priority between
ecological and socioeconomic objectives. In cases
of conflict between objectives or in cases where
information is uncertain or inconclusive, the
principal ecological objective should always take
precedence over the socioeconomic objective, for
the simple reason that achieving social and
economic objectives depends upon healthy
ecosystems.
Habitat
Recommendation 19 — 21. The National
Implement ecosystem-based fishery management.
protection
Marine Fisheries Service (NMFS) should
Make marine ecosystems the organizing principle
change the designation of essential fish habitat
for fishery management. Require that fishery
from a species-by-species to a multispecies
management plans are developed based upon
approach and, ultimately, to an ecosystem-based
consideration of how the entire ecosystem that
approach. The approach should draw upon
supports the fishery will be affected by fishing.
existing efforts to identify important habitats and
Redefine overfishing in an ecosystem context to
locate optimum-sized areas to protect vulnerable
consider the level of fishing that has detrimental
life-history stages of commercially and
effects in the ecosystem, even though it may not
recreationally important species.122
harm a particular target species.
Coordination
Recommendation 19-21. NMFS should work
Regional ocean ecosystem councils should
among
with other management entities to protect
coordinate with regional fishery management
jurisdictions
essential fish habitat when such areas fall
councils and other relevant entities; Regional
outside their jurisdiction.
ocean ecosystem councils should coordinate
among these authorities to ensure that ecosystem
health is taken into account at all levels of
government. The regional ocean ecosystem
councils’ role would be to consult with these
entities regarding ecosystem concerns related to
fisheries management, and to periodically assess
overall progress toward achievement of the goals
and policies of the regional ocean governance
plans.
122 This effort should include well-documented, science-based analytical methods; consideration of ecologically
valuable species that are not necessarily commercially important; and an extensive research and development
program to refine existing analytical methods and develop additional means to identify habitats critical to
sustainability and biodiversity goals.

CRS-60
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Bycatch:
Reduction plans
Recommendation 19 — 22. The National
Require bycatch monitoring and management
Marine Fisheries Service (NMFS), Regional
plans as a condition of fishing. The statutory goal
Fishery Management Councils, states, and
of these plans should be to reduce bycatch to
interstate fisheries commissions, should develop
levels approaching zero. The National Marine
regional bycatch reduction plans that address the
Fisheries Service should establish by regulation
broad ecosystem impacts of bycatch for areas
national criteria that determine what constitutes an
under their jurisdiction. Implementation of these
adequate and appropriate bycatch monitoring and
plans will require NMFS to collect data on
minimization plan under different circumstances
bycatch of all species captured by commercial
(e.g., minimum observer coverage levels). Only
and recreational fishermen, not only of
plans that meet these criteria and applicable
commercially important species. The selective
federal laws should be approved. Each fishery
use of observers should remain an important
should be allowed to develop its own plan. A
component of these efforts.
tightly constructed stakeholder process modeled
on the Marine Mammal Protection Act Take
Reduction Teams should be the principal
mechanism to develop these plans. The lobster
zone councils used in the Maine lobster fishery
provide another potential model.
Endangered
Recommendation 19-26. The National Plan of
The statutory definition of bycatch should be
species and
Action should stress the importance of reducing
broadened to include incidental mortality of all
marine mammals
bycatch of endangered species and marine
non-target species (fish and other living marine
mammals.
resources), and mortality by lost or abandoned
gear.
Observer
No similar recommendation.
Bycatch plans should include, at a minimum, an
program and
observer program or other appropriate, effective
monitoring
monitoring scheme; total fishing mortality limits
that include bycatch; and a requirement that
bycatch mortality be factored into stock
assessments.
Quotas
No similar recommendation.
Individual bycatch quotas for valuable fish species
(except threatened and endangered species) could
be used to manage bycatch. Conservative catch
quotas should be set for species, accounting for
intended and unintended catch. Fishermen should
be allowed to keep fish they catch within
conservative limits, rather than being forced to
discard and waste one species because they are in
a target fishery for another.
Conservation
Recommendation 19-23. The National Marine
No similar recommendation.
engineering
Fisheries Service (NMFS) should expand its
program in conservation engineering to help
reduce the impacts of fishing on ecosystems.
The program should give high priority to finding
ways to reduce bycatch in fisheries that interact
with endangered species. As gear and fishing
methods are shown to be effective, NMFS
should promote their rapid implementation in
U.S. fisheries and work with the U.S.
Department of State to promote their
international adoption.

CRS-61
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Endangered
Recommendation 20 — 3. The National Marine
No similar recommendation.
Species Act
Fisheries Service and U.S. Fish and Wildlife
coordination
Service, with guidance from the National Ocean
Council, should significantly improve their
coordination with respect to the implementation
of the Endangered Species Act, particularly for
anadromous species and sea turtles, and in
circumstances where land-based activities have
significant impacts on marine species.
International
Agreements:
Ratification and
Recommendation 19 — 24. The U.S.
No similar recommendation.
incentives
Department of State, working with other
appropriate entities, should encourage all
countries to ratify the Fish Stocks Agreement
and the United Nations Food and Agriculture
Organization’s Compliance Agreement. In
particular, the United States should condition
other nations’ access to fishing resources within
the U.S. exclusive economic zone on their
ratification of these agreements. The United
States and other signatory nations should also
develop additional incentives to encourage all
nations to ratify and enforce these agreements.
Funding for
Recommendation 19 — 25. The United States
No similar recommendation.
international
should fulfill existing international fishery
commissions
management obligations, including full funding
of U.S. commitments.
Update
Recommendation 19-25. The U.S. Department
No similar recommendation.
agreements to
of State, working with the National Oceanic and
harmonize
Atmospheric Administration, should review and
update regional and bilateral fishery agreements
to which the United States is a party, to ensure
full incorporation of the latest science and
harmonize those agreements with the Fish
Stocks Agreement.
Encourage Code
Recommendation 19 — 27. The National Ocean
No similar recommendation.
implementation
Council (NOC) should initiate a discussion on

effective international implementation of the
United Nations Food and Agriculture
Organization’s Code of Conduct for
Responsible Fisheries and other Plans of
Action.123
123 In particular, the NOC’s international committee should suggest methods to encourage nations to (1) join
relevant regional fishery management organizations; (2) implement and enforce regional agreements to which
they are bound; (3) collect and report the data necessary to manage fish stocks sustainably and to reduce fishery
impacts on habitats and protected species; (4) reduce or eliminate illegal, unreported, and unregulated fishing
by ships flying their flag; (5) reduce fishing fleet capacity, particularly on the high seas; and (6) reduce bycatch
of non-targeted species, in particular endangered populations such as sea turtles and marine mammals, via the
use of innovative gear and management methods such as onboard observer programs.

CRS-62
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Derelict fishing
gear:
Plan
Recommendation 18 — 4. The U.S. Department
No similar recommendation.
of State and National Oceanic and Atmospheric
Administration, working with the United
Nations Food and Agriculture Organization and
other appropriate entities, should develop a
detailed plan of action to address derelict fishing
gear around the world, to be implemented within
large multi-national regions.
Coordination
Recommendation 18 — 5. The National
No similar recommendation.
Oceanic and Atmospheric Administration should
work with all interested parties, governmental
and private, to implement incentives or other
effective programs for prevention, removal, and
safe disposal of derelict fishing gear.
Permanent
No similar recommendation.
Establish a permanent Fishery Conservation and
trust fund
Management Trust Fund. The fund should be
available without appropriation or fiscal year
limitation. It should be used only for the purposes
of improving fishery research, data collection,
management, enforcement, and habitat restoration.
In the first 5 to 10 years of operation, it should
also be available for transitional buyback and
community development programs. Revenues
should be applied within the region where they
were collected. Within regions, the fund should be
shared fairly among the federal government and
state programs for coastal fishery management.
The Secretary of Commerce should appoint
regional advisory panels with equal representation
from members of the industry, scientific
community, conservation community, and
appropriate local governments to ensure that
revenues are apportioned fairly and wisely. The
fund should not be used to defray the general costs
of government or to absolve the federal
government of responsibility to fund fishery and
ecological research and science. Potential revenue
sources for the fund include, but should not be
limited to, revenues generated by royalty payments
on landed catch (calculated as a percentage of the
value of the landed fish) and fees collected from
fines and other penalties.

CRS-63
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Zoning:
Comprehensive
No similar recommendation.
Regional ocean governance plans should consider
a full range of zoning options. This includes
marine protected areas, areas designated for
fishing, oil and gas development, as well as other
commercial and recreational activities. Initially,
area-based management should begin with
coordinating existing zones in the ocean, such as
areas closed to fishing, shipping lanes, and areas
for oil and gas extraction.
Specifically for
No similar recommendation.
Apply zoning in fishery management plans.
fishing
Incorporate comprehensive zoning within fishery
management plans to proactively partition planned
areas into sections designated for specific uses.
Areas not designated for particular uses should be
closed to those uses. Managers should evaluate the
life history and habitat requirements of species to
determine the appropriate types of area
management tools to employ, including spatial and
temporal closures, spawning closures, habitat
protection areas, bycatch reduction areas, and
marine reserves. Closed areas should be a required
element for any fishery management plan in which
there is substantial uncertainty or lack of
information about the status of heavily exploited
major fishery stocks.
Over a five-year transition period, implement a
Especially
No similar recommendation.
zoning regime that (a) limits bottom trawling and
bottom trawling
dredging to only those areas where best available
science indicates that such gear can be used
without altering or destroying important or
significant amounts of habitat; and (b) closes all
other areas to these fishing practices.

CRS-64
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Ocean
governance:
Participation
No similar recommendation.
Participation in regional ocean ecosystem councils
by the broadest possible range of stakeholders —
including fishermen and other ocean resource
users — should occur through a robust and
influential advisory process. (p. 103); Regional
ocean governance plans need to be informed by
the expertise and latest thinking of fishery
management councils, metropolitan planning
organizations, national estuary and watershed
councils, and other local and regional authorities.
Fisheries
No similar recommendation.
Regional ocean councils should leave day-to-day
management to the appropriate authorities. For
example, federal fisheries management would
remain the purview of the National Marine
Fisheries Service and the appropriate regional
fishery management council. (p. 103); The
National Marine Fisheries Service and the fishery
management councils must ensure that their
actions are consistent with applicable regional
ocean governance plan(s). Regional ocean
councils should review proposed state, federal, and
regional government actions and advise the
agencies proposing these activities on consistency
with regional ocean governance plans.
National Policy
Recommendation 19 — 26. The National
Require comprehensive access and allocation
and Plan
Oceanic and Atmospheric Administration,
planning as a condition of fishing. Establish a
working with the U.S. Fish and Wildlife Service
mandatory national policy to guide development of
and U.S. Department of State, should design a
fishery allocation plans. Each allocation plan
national plan of action for the United States that
should, at a minimum, limit access and entry to all
implements, and is consistent with, the
fisheries to help shape and match the size of
International Plans of Action adopted by the
fishing fleets and their catching capacity to the
United Nations Food and Agriculture
health of exploited populations and the integrity,
Organization and its 1995 Code of Conduct for
productive capacity, and resilience of marine
Responsible Fisheries.
ecosystems. Recover an appropriate share of the
continuing costs of fisheries management,
enforcement, and research as well as additional
funds to mitigate potential adverse effects of
fishery allocation plans on individuals and
communities. Be subject to a double referendum
where a super majority of the permit/license
holders in a fishery approves the initial
development as well as implementation of the
plan. Be reviewed at least every five years. If
appropriate, the plan should be revised to ensure it
continues to meet the objectives of this policy, the
public interest, other relevant laws and regulations,
and fishery participants. (p. 113-114); Implement
affirmative planning and management. Prohibit
fishing without an approved plan. Require
management of core problems such as bycatch,
habitat damage, and overcapacity as a condition of
fishing. Require a cooperative data-collection and
planning program for existing fisheries where
information is inadequate to determine whether
overexploitation is occurring.

CRS-65
Issue
U.S. Commission on Ocean Policy
Pew Oceans Commission
Mobile fishing
gear impacts:
Regulation
No similar recommendation.
Regulate the use of fishing gear that is destructive
to marine habitats. Create a fishing-gear zoning
program designed to protect seafloor habitats from
the adverse impacts of fishing practices. The
program should have an immediate and a
transition phase. Regulations should be developed
immediately to prohibit the use of mobile bottom
fishing gear in habitat areas known to be especially
sensitive to disturbance from such gear, including
but not limited to coral-reef and deepwater coral
habitats, complex rocky bottoms, seamounts, kelp
forests, seagrass beds, and sponge habitats. (p.
111); Prevent expansion of mobile bottom gear
into geographical areas where it is not presently
employed. Prevent expansion of the numbers of
vessels employing mobile bottom gear by
restricting the numbers of licenses, permits, or
endorsements to no more than current fleet sizes;
allowing transfers of licenses only to gears that are
documented to have lower impacts on habitats;
and allowing reentry of latent mobile gear effort
only with gears documented to have lower impacts
on habitats. Convene an independent panel to
develop rigorous scientific criteria and implement
a science-based process for designating zones
open to mobile bottom gear fishing. Implement a
gear-substitution program to reduce the use of
mobile bottom gear by conducting a viability
assessment to determine fisheries dependent on
such gear; and providing funding to replace gear in
fisheries that cannot be viably conducted without
mobile bottom gear. Close areas to mobile bottom
gear fishing if NMFS fails to implement the zoning
regime by the end of five years, unless and until it
has been determined that the best available science
indicates such gear can be used without altering or
destroying important or significant amounts of
habitat or reducing biodiversity.
No similar recommendation.
Specifically,
Recommendation 21 — 2. As part of the new
coral reefs
Coral Protection and Management Act,
Congress should codify and strengthen the U.S.
Coral Reef Task Force and place it under the
oversight of the National Ocean Council (NOC).
In collaboration with the states and territories,
the Coral Reef Task Force should coordinate the
development and implementation of regional
ecosystem-based plans to address the impacts of
nonpoint source pollution, fishing, and other
activities on coral reef resources.